Despite 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 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