Ninth Circuit Strikes Down Travel Ban 3.0

200px-US-CourtOfAppeals-9thCircuit-Seal.svgDespite a recent order from the Supreme Court lifting lower court injunctions on the travel ban, the United States Court of Appeals for the Ninth Circuit ruled that Travel Ban 3.0 is little more than a bad sequel with the same unconstitutional theme.  I have previously written that I view the controlling precedent as favoring President Trump on the travel ban.  While I respect this three-judge panel and their analysis, the opinion did little to change my mind on that legal point.  The panel correctly put the ruling on hold pending a review by the Supreme Court, so we are not set for the long-awaited showdown in Washington on these legal issues.

This month, the Trump Administration secured two clear victories after the United States Supreme Court issued two orders lifting the lower court injunctions imposed on the travel ban.  I have written repeatedly on the travel ban (here and here and here and here and here and here and here and here) and my view that the case law supported the Trump Administration.  I thought that the appeal that reached the Supreme Court on the second round seemed likely to succeed while the third round was even stronger for the Administration.  The Administration had already secured an order with the Ninth Circuit reversing the trial courts in critical respects.  The Supreme Court restored the travel ban in its entirety pending appeal, which was viewed by many as a ruling in part on the merits.

The three-judge panel ruled:

“The Proclamation, like its predecessor executive orders, relies on the premise that the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., vests the President with broad powers to regulate the entry of aliens. Those powers, however, are not without limit. We conclude that the President’s issuance of the Proclamation once again exceeds the scope of his delegated authority. The Government’s interpretation of 8 U.S.C. § 1182(f) not only upends the carefully crafted immigration scheme Congress has enacted through the INA, but it deviates from the text of the statute, legislative history, and prior executive practice as well.

Further, the President did not satisfy the critical prerequisite Congress attached to his suspension authority: before blocking entry, he must first make a legally sufficient finding that the entry of the specified individuals would be “detrimental to the interests of the United States.” 8 U.S.C. § 1182(f). The Proclamation once again conflicts with the INA’s prohibition on nationality-based discrimination in the issuance of immigrant visas. Lastly, the President is without a separate source of constitutional authority to issue the Proclamation.”

The panel strikes me as working a bit too hard to ignore the agency findings and recommendations in support of the new restrictions.  While I have long been a critic of Chevron or agency deference, the panel struck me as offering too little deference to the views of national security agencies and recommendations.   Consider this passage:

More broadly, the Government contends that Plaintiffs’ reliance on the statutory framework is misplaced because § 1182(f) empowers the President to issue “supplemental” admission restrictions when he finds that the national interest so warrants. Although true, this merely begs the question of whether the restrictions at issue here are “supplemental.” We conclude that the indefinite suspension of entry of all nationals from multiple countries, absent wartime or exigent circumstances, nullifies rather than “supplement[s]” the existing statutory scheme.

It is far from axiomatic or even compelling to argue that “supplemental” cannot include specific bans on countries until they meet vetting standards to the satisfaction of the government.

What is also curious is how the panel used the principles of separation of powers to “further compel our conclusion that the Proclamation exceeds the scope of authority delegated to the President under § 1182(f).”  Courts follow a rule that “where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988); see also INS v. St. Cyr, 553 U.S. 289, 300 (2001). However, that would seem to favor a finding in favor of the government’s interpretation of the scope of such “supplemental” changes — not to strike down a major immigration measure as exceeding executive authority.

The panel brushes over the glaring failure of the district court to fully consider these findings and the judge’s statement that the ban was “unsupported by verifiable evidence,” Hawaiʻi TRO, 2017 WL 4639560, at *11. The panel simply describes the trial court as “imprecisely stat[ing]” that the findings were unsupported.  However, again, the panel adopts a remarkably narrow view of the support needed for such changes.  The position of the government is that these nations fall short of articulated vetting procedures.  Instead, the panel concluded that there is “no finding whatsoever that foreign nationals’ nationality alone renders entry of this broad class of individuals a heightened security risk to the United States.”

None of this means that the decision is not well-written or written in good faith. I have always said that these are close questions and that people of good faith can disagree on the merits.  Judges have disagreed at every stage of the litigation over the three travel bans.  This panel raises important countervailing concerns over the circumvention of Congress by executive fiat.  Moreover, I strongly disagree with those who call for the break up to the Ninth Circuit every time a panel rules against the President.  There are legitimate issues regarding the size of the Ninth and countervailing arguments against a division of the circuit.  Yet, the division of the Ninth Circuit should not be an act of distemper or retaliation simply because one does not like how these judges rule.

I would normally be “all in” on such analysis as someone who believes in robust legislative authority.  However, Congress in this area gave the Administration express authority to make supplemental changes and flexibility in dealing with immigration issues.

This opinion makes a strong analytical case. I simply find it hard to square with existing precedent and presumptions supporting the Administration.  This has nothing to do with the merits of the travel ban or its necessity.  There are equally strong policy arguments against this ban. However, the issue for the court is not to substitute its judgment on the policy choices but to determine whether a president has acted within the navigational beacons of constitutional and statutory law.  Despite my respect for the panel and its work, I view those beacons as far broader than suggested by the panel in its decision.

Here is the opinion: Travel Ban decision


35 thoughts on “Ninth Circuit Strikes Down Travel Ban 3.0”

  1. Lawyers , what a low life form . Even after electoral college saved the country from a corrupt obama third term some still shamelessly prefer popular vote , how is then it is surprising to see all this judicial corruption !

  2. To those who support or oppose break up of the ninth circuit appeals court THERE is an alternative. Keep the court as it is but move it’s home to New Plymouth, Idaho
    And yes I am serious. It is a Very small town in a small county in a low population state. Perhaps judges willing to work there will focus on the constitution instead of their “personal” morality.

  3. This is a purely political act of hyperbolic semantic convolution constituting usurpation as “overreach” by members of the judicial branch. The judicial branch has no authority to set immigration policy.

    In America, the People hold the power which devolves to Congress. Through a strengthen and accelerated process, Congress must exercise its power to effect corrective action and impeach judges and justices who commit crimes of high office which void the “manifest tenor” of the Constitution.

    Article 2, Section 4

    “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

  4. The 9th U.S. Circuit Court of Appeals, which covers several West Coast states, also said its ruling would be put on hold pending a decision on the latest version of the travel ban from the Trump administration by the U.S. Supreme Court.

    Apparently this was more of a symbolic win for the 9th. What a waste of resources.

  5. How did we get to a point where a lower court could block a president from doing what is his right to do under the rules of how our executive branch operates? I’ve never seen this before under any President.

  6. Tough for Trump to get anything done with all the forces arrayed against him: Deep State security organs, leftists and uniparty loyalists in the permanent bureaucracy and Congress and biological Leninist judges. They were more comfortable with Hillary ,who (1} destroyed Libya to turn it over to jihadists, and is ultimately responsible for the return of black slavery to that country and, (2) kept pressing for war with Russia via a no-fly zone over Syria.

    1. Your points are nailed. I currently am enjoying the State Department dandies, Elliot Cohen for one, pitch a hissy fit over Tillerson’s budget reduction attempts from 55 Billion to 39. Poor darlings. Don’t they know the more they howl about all of their courtesan designed appointments being ripped terribly away from them, the more people pay attention to what they are doing. It’s like the NATO argument, ok now we know which countries, or the simple fact countries owe us money and what is our policy on that debt?
      I would have never thought of either of those two events and further consider the financial and geopolitical ramifications of their loses.
      I think it opens up any discussion about what can we do without regarding what we feed our government and how it needs to run and what it needs to crap out.
      Getting rid of some of the political entrenchment is apparently needed.
      I miss DSS

      1. Cut da diplomats and increase da nukes. Da dear leaders kimmi and Donnie declared it. Thought t rump was firing Tillerson cause he called him and idiot. T rump will have to fire his whole cabinet cause they all call him an idiot. Does kimmy’s Cabinet think he is an idiot. You betcha but they must shut up and praise da dear leader. Mike Pence is praying for it.

      2. Roscoe P. Coltrane said, “I miss DSS.”

        Me too. But maybe not for the same reason. Think “judicial ukase cohorts and their feelz.” (I’m not endorsing that view.)

  7. I would not “term” this as a “travel ban”. It is an “entry ban”.

    We need a Wall. We need a sign on the Wall: Stay the Frig OUT!

  8. The Constitution does not apply to individuals outside the United States. Or does it?
    It is legal to refuse entry to anyone at all for any reason, including religion. Or is it?

  9. One of the ways to determine if a judge is performing fairly and effectively is compare the decisions and methods of the subject judge to other judges lacking fairness, scholarly analysis, and supportable application of the law.

    So naturally, when people want to look for bad judges, they frequently cite and refer to the judges in the Ninth Circuit. The problem with making such comparisons is that EVERY judge looks good by comparison to the judges of the Ninth Circuit.

    But the problem is even deeper than that. The Judges in the Ninth Circuit are judges in name only. They are really just a bunch of untalented political hacks who twist the law and case precedent into such a mangled mess that the truth can scarcely be found in anything they touch.

      1. I know a lot of great lawyers, many of which work in the Ninth Circuit. Many of them feel exactly as I do, though they might not express how they feel in the kinds of words I’ve used. And they certainly can’t publicly express how they feel, for obvious reasons, because the judges there won’t take kindly to hearing the truth about them and the lawyers’ practices would be harmed.

        The bottom line is that there are many great Ninths in this world. For example, Beethoven’s Ninth is a wonder. Mahler’s Ninth is brilliant. But the Ninth Circuit is a total flop. Yet, their crap is replayed far more frequently than Beethoven or Mahler.

    1. Thanks for the legal analysis, esquire. Oh, wait; never mind.

      This is to “buffoon at law” ralphie

      1. Marky Mark Mark – you should be thanking Ralph for the education about the Ninth Circus. Someday you may mature, get out of your mother’s basement and get a job in a firm that has to deal with the Ninth Circus. This heads-up will let you know in advance what you and your law firm are in for.

      2. Terrible legal analysis round here. If da ruling favors da T rump
        It is good. If da ruling does not favor da T rump
        It is bad. Very simple minded.

        1. Ya can’t battle ignorance on steroids. They will not be happy until der drumpfen fuhrer controls everything.

          1. Ya can’t battle ignorance on steroids.

            Of course I can. It’s why I respond to you and several others on this blog. 😊

    2. Ralph Adamo – I think you still speak too highly of the justices of the Ninth Circus. I know there are some justiceships to fill on the circus and hopefully, Trump will do it this round, because the Ninth Circus is going to be a liberal thorn in his side for his entire administration. I think there are 5 vacancies he gets to fill.

    1. At present the SCOTUS told the lower court to cease and desist and they did not. At this point the panel of three dissidents are eligible for an impeachment traial ordered by SCOTUS. It might take a few more changes on The Court for that to happen but another reason to keep up the pressure in the midterms on the balance in the Senate. For now we may have to live with the RINOs for a while but there is no living with the DINOs.

      1. Liberty2nd – SC stands for Supreme Court, this is a legal blog and it was a legal bet 🙂

        1. What does POTUS mean? I see that word bandied about. I thought “SCOTUS” was for the Supreme Court.
          The simple use of letters is: Sup. Ct.

          1. Liberty2nd – you are going to see SC, SCOTUS, Sup. Ct., etc there are several variations. 🙂 I just made mine the shortest. 😉

          2. As Paul has told you SCOTUS is short for Supreme Court of the United States.

            POTUS is short for President of the United States.

            And NITWIT is Ninth Independent Tribunal of Worthless Injudicious Troublemakers, commonly called the Ninth Circuit of the US Court of Appeals.

  10. ” The Proclamation once again conflicts with the INA’s prohibition on nationality-based discrimination in the issuance of immigrant visas.”

    I must have missed the argument made by the professor wherein he rebuts that judicial finding

    1. President Obama instituted nationality-based discrimination in the Visa Waiver program based on perceived threat of jihadist attacks. Why didn’t anybody sue hime to stop that? This all seems so ad-hominem and partisan. The Courts are too eager to participate in this type of political squabbling.

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