Ninth Circuit Says Trump Violated the Immigration Laws With Muslim Travel Ban

Image courtesy of Wilson Pumpernickel

The Ninth Circuit Court of Appeals delivered another stinging rebuke to President Donald Trump’s Muslim Travel Ban. While the Fourth Circuit ruled last month that the Travel Ban violated the First Amendment’s protection of religious liberty, the Ninth Circuit said today that Trump violated Federal statute in issuing the executive order.

The court noted the president’s claims of virtually unquestionable authority in the area of immigration law. It said that; “The Immigration and Nationality Act (“INA”) gives the President broad powers to control the entry of aliens, and to take actions to protect the American public. But immigration, even for the President, is not a one-person show.”

The court ruled that “the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress.” The immigration laws allow the president to ban certain individuals who pose a danger to the United States, but not to unilaterally bar whomever the president pleases. The court wrote; “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.” The president also violated the provision in the Immigration and Nationality Act banning “nationality-based discrimination,” it said.

The rationale the Trump administration gave for banning travelers from six Muslim countries was the protection of the United States from terrorism. The Court held that:

“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.”

The court said that even if the six countries could be considered to be particularly dangerous generators of terrorists, the executive order banning the nationals of those countries does not serve the intended purpose. It would ban people who might never have lived in the countries, but who inherited citizenship through a parent and not ban someone who lives in one of the six, but who has never become a citizen.

The court ruled that the executive order “does not offer a sufficient justification to suspend the entry of more than 180 million people on the basis of nationality. National security is not a “talismanic incantation” that, once invoked, can support any and all exercise of executive power”

Citing Supreme Court Justice Frank Murphy’s dissenting opinion in the Japanese internment case from World War II, the court indicated that reason did not support the president’s actions.

The entire decision can be read here.

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Patrick Young blogs daily for Long Island Wins. He is the Downstate Advocacy Director of the New York Immigration Coalition and Special Professor of Immigration Law at Hofstra School of Law. He served as the Director of Legal Services and Program at Central American Refugee Center (CARECEN) for three decades before retiring in 2019. Pat is also a student of immigration history and the author of The Immigrants' Civil War.

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