The Volokh Conspiracy
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Last night, the US Court of Appeals for the Ninth Circuit issued a ruling against the third version of President Trump's travel ban, which permanently bars entry into the United States by nearly all citizens of six Muslim-majority nations. The court's opinion is available here. Famed legal journalist Lyle Denniston has a helpful summary of the ruling:
The unanimous opinion of the three judges was filled, end to end, with strongly worded critiques of the executive order the President signed on September 24. It ruled that the challengers of that version were likely to be able to prove, at a full-scale trial, that this version contradicted immigration laws passed by Congress in four different ways.
But, this time, the Ninth Circuit Court added a stern constitutional lecture to its finding of flaws: when the President uses his power as the nation's Chief Executive in the face of contrary laws passed by Congress, that power "is at its lowest ebb," the panel said, quoting from a 1952 opinion by a Supreme Court Justice when the highest court nullified President Harry Truman's seizure of the nation's steel mills during the Korean war, to keep them operating despite a labor union strike….
Congress, the panel wrote, is given the primary authority to control U.S. immigration policy and, while it has given presidents wide discretion to curb entry by foreign panels, but that power is not unlimited and President Trump appears to have far exceeded those limits.
The panel appeared to be deeply disturbed by the claims that the President's lawyers had made in defending the latest order – that is, that "the President, at any time and under any circumstances, could bar entry of all aliens from any country" and that "no federal court – not a federal district court, nor our court of appeals, nor even the Supreme Court itself – would have Article III jurisdiction" based on the breadth of the claim to White House power.
Since Congress has never voted to strip the courts of their authority to review presidential orders banning foreign entrants, the opinion commented, "we doubt whether the government's position could be adopted without running roughshod over the principles of separation of powers enshrined in our Constitution…"
In concluding that the President had probably failed to obey immigration laws passed by Congress, the Ninth Circuit Court concluded that Trump appeared to have (1) exceeded powers given by Congress to bar entry into the U.S. of foreign nationals, (2) failed to make the specific finding imposed by Congress that the foreign nationals being kept out would harm United States interests, (3) violated a congressionally-imposed bar [on discrimination] based on the nationality of those excluded, and (4) lacked the authority under his own Executive powers to impose the curbs without explicit power given by Congress.
"The Executive," the panel remarked, "cannot without assent of Congress supplant its statutory scheme [for immigration] with one stroke of a presidential pen."
The decision closely follows a recent trial court ruling against the travel ban which the Trump administration was appealing, and also its own earlier decision against the previous version of the travel ban. The Ninth Circuit decision is based purely on statutory issues, and on separation of powers principles, which limit executive authority relative to that of Congress. It does not address claims that the travel ban is unconstitutional because it was adopted for the purpose of discriminating against Muslims. Thus, Trump's various statements promising to target Muslims and institute a "Muslim ban" are not relevant to the issues addressed by the Ninth Circuit.
As Denniston notes, the Ninth Circuit opinion is noteworthy for its strong rejection of Trump's claim to virtually unlimited and unreviewable presidential power to exclude aliens, regardless of any limitations imposed by Congress. Letting the president claim such boundless authority would be a dangerous breach of separation of powers whose implications go far beyond the travel ban.
In October, a federal trial court decision in Maryland ruled that Travel Ban 3.0, like its predecessors, violates the First Amendment's ban on religious discrimination. That ruling is now on appeal to the US Court of Appeals for the Fourth Circuit, which previously struck down Travel Ban 2.0 on the same basis. A violation of the First Amendment would, of course, be unconstitutional even if Congress had authorized it.
In my view, Travel Ban 3.0 is both unconstitutional and a violation of statutory law, for reasons I outlined here. In that post, I also explained why the inclusion of North Korea and some Venezuelan government officials does not obviate the anti-Muslim purpose of the ban. I have previously discussed why Trump's various travel bans qualify as unconstitutional discrimination despite the fact that they do not exclude all the Muslims in the world. With respect to the statutory issues, Travel Ban 3.0 is actually more blatantly illegal than its predecessor, as explained by immigration law scholar Peter Margulies (who thought the previous version was within the president's power, in part because of its temporary nature).
Technically, the Ninth Circuit ruling is not a final decision, but merely upholds much of the preliminary injunction issued by the trial court. However, the court's opinion makes it very clear that they would almost certainly rule against the administration in any final decision on the merits.
The injunction will not go into effect until the Supreme Court either rules on the case or declines to review the Ninth Circuit's decision, because the Supreme Court, on December 4, issued a ruling staying preliminary injunctions against Travel Ban 3.0 until such time as one of those events occurs. Some commentators have argued that this ruling indicates that the justices are likely to uphold the travel ban when and if the case gets to them. They could be right. But there are a number of other possible interpretations of the Supreme Court's actions.
In any event, we may well soon see what the justices really think. Both the Ninth Circuit ruling and the expected Fourth Circuit decision on the religious discrimination question are likely to be appealed to the the Supreme Court. The legal battle over Trump's travel ban is likely to return to the Supreme Court soon—an outcome I thought likely ever since the Court dismissed as moot the cases involving Travel Ban 2.0, after that order expired.