On Monday, the United States Court of Appeals for the Ninth Circuit restored the latest travel ban imposed by President Donald Trump. I previously criticized (here and here) the challenges to the travel ban and I believe that the Ninth Circuit is on solid ground in ruling the government can bar entry of people from six Muslim-majority countries with no connections to the United States. In my view, the injunction issued in Hawaii ignored the significance of not only critical differences in the third travel order but also the prior decision of the Supreme Court to vacate the prior injunction.
The connection to the United States are defined as family relationships which include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews and cousins of people in the United States. The term can also include and “formal, documented” relationships with U.S.-based entities such as universities and resettlement agencies. The order tracks the interim decision the Supreme Court issued in June on the second version of the travel ban. The Supreme Court earlier reversed the Ninth Circuit on its prior injunction of the second travel order. It did however continue to enjoin the order as to people with such relationships with the United States. Notably, at the time, three justices wanted a total vacating of the injunction without any exception.
The decision reverses parts of the lower court decision by U.S. District Judge Derrick Watson in Honolulu. The three appeals court judges included Clinton appointees Michael Daly Hawkins, Ronald Gould and Richard Paez. The Ninth Circuit did not issue a permanent ruling. The oral argument on the merits will be heard in Seattle on Dec. 6 before the same three judges.