With today’s ruling, both the 4th and 9th Circuits have ruled against Trump’s travel bans, the cases are on their way to the U.S. Supreme Court. The most immediate questions are:
- Will the U.S. Supreme Court grant a writ of certiorari, accepting the two cases for review?
- Will the U.S. Supreme Court issue a highly unusual stay of the orders of the 9th and 4th Circuits while the appeal is briefed and argued?
- Will the Supreme Court expedite the Trump administration’s appeal, as the administration asked – and if so, how fast will the hearing and decision come?
NOTE: The text of this post will be included in tomorrow morning’s Immigration News summary.
The Ninth Circuit ruling gave an additional rationale for finding the travel ban illegitimate: it violates the Immigration and Nationality Act prohibition against discrimination on the basis of nationality, which meant Trump “exceeded the scope of the authority delegated to him by Congress.”
The unanimous ruling also allows the Trump administration to proceed with internal studies of security measures — which gives the Supreme Court even less reason to expedite its own consideration of the case, or to stay the 4th and 9th Circuit rulings.
“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 President’s authority is subject to certain statutory and constitutional restraints.”
9th Circuit Court of Appeals Refuses to Reinstate Trump’s Travel Ban (Los Angeles Times, 6/12/17)
“The 9th Circuit said Trump’s revised executive order failed to justify a need for the ban and violated a 1965 federal immigration law that bars discrimination based on nationality….
“The 9th Circuit narrowed the injunction a bit to allow for internal studies of security measures but said the rest of Trump’s order could not be enforced.”
Trump Loses Travel Ban Ruling in Appeals Court (New York Times, 6/12/17)
“The two courts employed different reasoning to arrive at the same basic conclusion. The Fourth Circuit said the revised executive order violated the First Amendment’s prohibition of government establishment of religion.
“The Ninth Circuit, by contrast, rested its conclusions on statutory grounds. It said Mr. Trump had exceeded the authority Congress had granted him in making national security judgments in the realm of immigration without adequate justification.”
The 9th Circuit, however, has now blocked the ban on statutory grounds, holding that Trump “exceeded the scope of the authority delegated to him by Congress.”
“This alternative reasoning does not change the outcome of the case, but it does give the Supreme Court a narrower basis on which to rule if the justices decide to weigh in….
“The order, the court wrote, “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.” Nor did it “reveal any threat or harm to warrant suspension” of, or dramatic cuts to, the refugee program…”
Muslim Ban 2.0: What Happens Next (National Immigrant Law Center, 6/9/17) Concise, clear summary of the procedural posture of the Supreme Court appeal.
Despite Trump’s Tough Talk on Travel Ban, Few Changes on Vetting (New York Times, 6/11/17)
“Mr. Trump’s lawyers have moved slowly in responding to legal challenges to the White House’s initial and revised travel bans. And immigration experts say the administration has not taken steps it could have — even while the latest ban is tied up in the courts — to achieve the restriction’s stated goal: to tighten the vetting of people trying to get into the United States.
“The result has been that almost halfway through his first year in office, Mr. Trump has made few changes to the way people enter the United States from the countries he has deemed the most dangerous, despite his frequent campaign promises to institute “extreme vetting.”