9th Circuit deals Trump travel ban another defeat

By Laura Jarrett and Ariane de Vogue

June 12, 2017

Another federal court has ruled against President Donald Trump's revised executive order limiting travel from six predominately Muslim countries -- and like other courts, used his tweets against him.

The ruling from a three-judge panel of the Ninth Circuit Court of Appeals is yet another stinging loss from a court that similarly refused to reinstate Trump's original executive order on travel in February. 

"We conclude that the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress," the three judges, all appointed by President Bill Clinton, wrote. "(I)mmigration, even for the President, is not a one-person show."

The judges cited Trump's latest tweets in the travel ban saga.

"That's right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won't help us protect our people!" Trump tweeted on June 5.

"Indeed, the President recently confirmed his assessment that it is the 'countries' that are inherently dangerous, rather than the 180 million individual nationals of those countries who are barred from entry under the President's 'travel ban,'" the judge wrote.

They also cited White House press secretary Sean Spicer's confirmation that the President's tweets are "considered official statements by the President of the United States."

The judges largely affirmed US District Court Judge Derrick Watson's decision from March which found the core provisions of the revised executive order -- temporarily blocking all refugees and foreign nationals from six Muslim-majority countries from entering the US -- likely violated the Constitution because its primary purpose was to disfavor Muslims, but on slightly different grounds.

Spicer on Monday said the administration is reviewing the decision and said it believes the travel ban is "lawful" and will be ultimately upheld by the Supreme Court. 

The Justice Department did not immediately comment on Monday's ruling.

Monday's ruling will no doubt be appealed to the Supreme Court, which is already considering a similar case from the Fourth US Circuit Court of Appeals in Virginia.

After Watson's ruling this spring, Attorney General Jeff Sessions criticized the action, saying he was "amazed that a judge sitting on an island in the Pacific can issue an order that stops the President of the United States from what appears to be clearly his statutory and constitutional power."

Stronger ruling than 4th circuit

Unlike the Fourth Circuit Court of Appeals, which shot down the President's revised travel ban on constitutional grounds last month, the Ninth Circuit was persuaded by statutory claims under the federal Immigration and Nationality Act.

"In conclusion, the Order does not offer a sufficient justification to suspend the entry of more than 180 million people on the basis of nationality," wrote the panel.

The court went on to explain that the federal immigration law "requires that the President exercise his authority only after meeting the precondition of finding that entry of an alien or class of aliens would be detrimental to the interests of the United States. Here, the President has not done so."

One victory for Trump administration, but will it hurt overall?

The court did limit the scope of Watson's ruling in one respect: inter-agency review of foreign countries' vetting procedures. 

Acting Solicitor General Jeffrey Wall had previously maintained that the administration was forbidden from conducting "a review of the vetting procedures" with respect to the six countries the ban covered -- but the Ninth Circuit concluded Monday that Watson "abused its discretion in enjoining inward-facing agency conduct because enjoining this conduct would not remedy the harms asserted by Plaintiffs."

But that partial victory may actually hurt the administration's chances before the Supreme Court, said Steve Vladeck, CNN legal analyst and professor at the University of Texas School of Law.

"By holding that the district court was wrong to block the executive order's internal review procedures, the court of appeals allowed that review to go forward -- and, in the process, took away one of the arguments the government had been making in the Supreme Court for why the Hawaii order should be overturned," Vladeck said.

Legal filings due Monday in Supreme Court

The administration appealed the Fourth Circuit ruling to the Supreme Court, which set a Monday deadline for challengers of the travel ban to deny a request to allow the ban to go into effect immediately. It has also asked to stay the Hawaii judge's ruling.

"The First Amendment bars the government from making a citizens' status in the political community dependent on his faith," wrote Neal Katyal, an attorney for the state of Hawaii who is challenging the ban, in a filing Monday.

"The President unquestionably violates that command when he issues an Order that disproportionality burdens Muslim-Americans, while denigrating the Muslim faith and making it abundantly clear that the Order's harmful effect on Muslims is far from incidental," Katyal argued.

Katyal's brief also walks through the statement the President made during the campaign referring to a "Muslim ban" and the June 5 tweets.

In those tweets, the President expressed regret for withdrawing a previous version of the ban that had been issued last January. After the courts roundly criticized the original ban, the current revised edition was released in March. Among other things, the current travel ban no longer includes language that arguably prioritized certain religious minorities. It also removed Iraq from the list of banned countries, and makes clear that green card holders are exempt.

Katyal cites a tweet the President made on June 5 when he wrote, "The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C."

"Staying the injunction," Katyal writes, would "thrust the country back into the chaos and confusion" that resulted when the first Order was announced.

In his filing with the Supreme Court, ACLU attorney Omar C. Jadwat cited the impact of the ruling on the US Muslim community.

"Millions of American Muslims would know that, every day, their own government was enforcing a policy that denigrated their religion and their dignity," Jadwat wrote. "To allow the ban to go forward, the courts would have had to ignore a mountain of publicly available evidence—even though everyone else in the country, including those of the disfavored faith, could not ignore it."