According to Bloomberg, the U.S. Court of Appeals in San Francisco concluded Monday that the president exceeded his authority by suspending nationals from six mostly Muslim countries without showing how letting those people in hurts American interests. Last month, a Richmond, Virginia-based panel of judges ruled that the ban was “steeped in animus and directed at a single religious group.”
Trump wants the Supreme Court to revive a 90-day ban on the six countries, a step he says will protect the country from terrorists.
A panel of three judges appointed by former President Bill Clinton said in Monday’s opinion that Trump’s ban runs afoul of a federal law that prohibits nationality-based discrimination and requires the president to follow a specific process when setting the annual cap on the admission of refugees.
The 9th Circuit judges also cited a tweet by Trump on June 5 calling the order a “travel ban,” as well as the White House’s assertion that the president’s comments on Twitter are official statements.
Sean Spicer, the White House press secretary, said when asked about the president’s tweets that the travel ban “should be decided on the rule of law.”
He added that they “continue to be confident the president’s executive order to protect the country is fully lawful and will be upheld” by the Supreme Court.
Vetting Procedures
The appeals court did side with Trump in one respect. It said the Honolulu judge who blocked the travel ban was wrong to prohibit the Trump administration from doing internal reviews of immigration-vetting procedures. The appeals panel said those reviews “have no obvious relationship to the constitutional rights” at stake in the litigation.
Separately Monday, two groups of challengers to Trump’s stalled ban urged the Supreme Court to maintain the halt on the plan. Hawaii said the court should leave in force the order from the judge in that state, saying Trump’s executive order “denigrates Muslims and effects a policy of religious intolerance in all its applications.”
A group represented by the American Civil Liberties Union told the high court it shouldn’t review the earlier appeals court decision.
“The blank check the government seeks in this case is not consistent with our Constitution,” ACLU lawyers argued in their filing.
Those groups drew support Monday from 17 state attorneys general who filed briefs urging the high court to reject the administration’s requests. The group was led by New York’s Eric Schneiderman.
Religious Motivations
In the earlier decision, the Richmond-based 4th U.S. Circuit Court of Appeals voted 10-3 to uphold a nationwide halt to the policy, saying the travel ban was driven by unconstitutional religious motivations. The majority pointed to Trump’s campaign vow to bar Muslims from entering the country and to the special preference for religious minorities included in an earlier version of the ban.
The appeals court’s May 25 opinion also faulted the White House for rushing out the first version without consulting with the national security agencies.
Monday’s ruling was less sweeping, focusing not on the Constitution but on the legal standards for such an order under U.S immigration law. In part of its opinion, for instance, the court said the order is flawed because it doesn’t explain why permitting entry of nationals from the six countries under current immigration procedures would be harmful.
In its Supreme Court appeal, the administration says the lower courts went too far in second-guessing the president’s national-security determinations.
The president “placed a brief pause on entry from six countries that present heightened risks of terrorism,” acting U.S. Solicitor General Jeffrey Wall argued in the appeal. The lower court ruling “creates uncertainty about the president’s authority to meet those threats as the Constitution and acts of Congress empower and obligate him to do.”
The temporary nature of the ban may complicate the Supreme Court’s deliberations. The administration is asking for a stay of the lower court rulings so the ban can take effect immediately. The government is also seeking arguments on the appeal itself after the justices return in October from a three-month recess.
That timetable could leave the actual appeal with little if any practical implications. If the court lets the ban take effect, it could expire by its own terms before the court even held arguments, much less ruled.
One possibility is that the court could put the case on a faster track than the Trump administration sought and perhaps even schedule arguments before the current term ends in a few weeks. Trump’s position was strengthened in April when the Senate confirmed his Supreme Court nominee, Neil Gorsuch, restoring the court’s conservative-leaning majority.
After Trump’s proposed Muslim ban drew criticism during the campaign, he shifted course and called for blocking immigration from countries with what he said was a proven history of terrorism.
Trump’s initial travel order -- issued a week after he took office -- threw airports around the world into chaos and prompted an outcry from the technology industry and U.S. universities before it was blocked in court. The president signed the revised version on March 6, and he later said it was needed to protect against “radical Islamic terrorists.” The policy would temporarily halt issuance of visas to people from Iran, Libya, Somalia, Sudan, Syria and Yemen.