President Trump’s losing streak on his travel ban continues. The U.S. Court of Appeals for the 9th Circuit upheld almost entirely the ruling from a district court in Hawaii (“an island in the Pacific”) striking down the second version of his travel ban. The time spent in defending thinly disguised efforts to stoke Islamophobia has long surpassed the time he originally laid out in the original plan to devise a super-duper vetting plan to examine people from the seven (later six) countries he identified.
An ACLU spokesman told me, “Two appeals courts have now looked at the Muslim ban and both have forcefully ruled that the ban is unlawful. Although the Fourth and Ninth Circuits used different rationales, both courts were clear that there is no justification for this type of ban.”
The Ninth Circuit once again rejected his claim that he has near-unlimited power to ban certain groups:
Immigration, even for the President, is not a one-person show. The President’s authority is subject to certain statutory and constitutional restraints. We conclude that the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress. In suspending the entry of more than 180 million nationals from six countries, suspending the entry of all refugees, and reducing the cap on the admission of refugees from 110,000 to 50,000 for the 2017 fiscal year, the President did not meet the essential precondition to exercising his delegated authority: The President must make a sufficient finding that the entry of these classes of people would be “detrimental to the interests of the United States.”
Further, the Order runs afoul of other provisions of the INA that prohibit nationality-based discrimination and require the President to follow a specific process when setting the annual cap on the admission of refugees. On these statutory bases, we affirm in large part the district court’s order.
In months of litigation, the administration seems not to have learned that courts simply do not buy arguments that his actions are unreviewable. As to the first, the court instructed the administration: “Whatever deference we accord to the President’s immigration and national security policy judgments does not preclude us from reviewing the policy at all. … We do not abdicate the judicial role, and we affirm our obligation ‘to say what the law is’ in this case. Marbury v. Madison, 5 U.S. 137, 177 (1803).” Why the government persists in the arrogant argument that courts have no place in this legal debate defies logic and competent legal strategy.
On the specific legal grounds, the court found the president did not “find that the entry of a class of aliens into the United States would be detrimental to the interests of the United States.” The court slams the administration for failing to provide minimal support for its draconian action: “We reject the first three reasons provided in Section 2(c) because they relate to preservation of government resources to review existing procedures and ensure adequate vetting procedures. There is no finding that present vetting standards are inadequate, and no finding that absent the improved vetting procedures there likely will be harm to our national interests. These identified reasons do not support the conclusion that the entry of nationals from the six designated countries would be harmful to our national interests.” It is as if the government’s lawyers aren’t bothering to or cannot get their client to collect data that the government certainly would have in its control — unless, of course, it has no evidentiary support for a purely political gesture.
As for the national security justification, the court likewise finds the government didn’t come up with much of anything to justify excluding people from these countries. (“The Order does not tie these nationals in any way to terrorist organizations within the six designated countries. It does not identify these nationals as contributors to active conflict or as those responsible for insecure country conditions. It does not provide any link between an individual’s nationality and their propensity to commit terrorism or their inherent dangerousness. In short, the Order does not provide a rationale explaining why permitting entry of nationals from the six designated countries under current protocols would be detrimental to the interests of the United States.”) Turning to the ban on refugees — you guessed it — the court likewise doesn’t see any rationale for the broad claim that such people are a threat to the United States.
Moreover, the court also finds that the president’s power is restricted by legislation passed in 1965 that prohibits discrimination in the visa issuance process. Supporters of the ban have argued that this statute didn’t curtail the president’s more general authority over immigration. The court didn’t buy it.
Because the court found the administration did not meet its statutory requirements, there was no need to look at the constitutional infirmities of the ban.
The only “wins” here were the court’s recognition that the government could continue its inter-agency review of vetting and that it was not necessary to enjoin the president specifically.
We find it hard to understand why the government’s lawyers do not prevail upon the government to collect necessary data and make a persuasive showing as to why the travel ban is required for these six countries or why all refugees need to be banned. “I’m struck by the cumulative effect of the president’s losses,” says former Justice Department spokesman Matthew Miller. “He’s lost on statutory grounds. He’s lost on constitutional grounds. He’s lost in the east, the west, and even on an island floating in the Pacific. He’s lost on his first order, and he’s lost on his second ‘politically-correct, watered down’ version.” He adds: “For a president who promised we’d get tired of all of his winning, his travel ban has been a catastrophe from day one.”
One might conclude that the administration is too incompetent or lazy to make the required showing. We prefer a different theory: These orders have no national security or other justification, but rather are blatant appeals to prejudice that have no factual, rational basis. No lawyer in the world can defend that in court.