A second federal appeals court has refused to reinstate President Trump’s travel ban after concluding that the prohibition exceeds the scope of his authority.
To justify a ban on visitors to the United States for 90 days from six predominantly Muslim countries, the president by law must find that entry of those visitors would harm the interests of the U.S., a conclusion that has no basis in the record put forward by the White House, a three-judge panel of the Ninth Circuit said in an 86-page ruling published on Monday.
The decision offers a different basis for rejecting the ban than one relied on by the Fourth Circuit, which found that the ban disfavors Islam in violation of the Establishment Clause. The government has appealed that ruling to the Supreme Court. (The challengers’ briefs are due today.)
The executive order that enshrines the travel ban does not discuss any instances of terrorism in the U.S. by citizens of Iran, Libya, Somalia, Sudan or Yemen, the Ninth Circuit ruled. (The order cites one example of domestic terrorism by a native of Somalia who came to the U.S. as a child.)
“The order does not offer a sufficient justification to suspend the entry of more than 180 million people on the basis of nationality,” the panel wrote. “National security is not a ‘talismanic incantation’ that, once invoked, can support any and all exercise of executive power under [the Immigration and Nationality Act].” (citation omitted)
Nor, the judges said, does the order include a finding by the president that procedures currently in place for screening visa applicants is inadequate. The ban also contravenes a provision in the immigration law that prohibits discrimination in the issuance of visas, the court said.
The Ninth Circuit narrowed an injunction by a district judge in Hawaii in a way that may offer the Supreme Court an out should the justices want to avoid ruling on the ban’s constitutionality. The panel permitted the administration to proceed with a review of vetting procedures to determine what additional information, if any, is needed from the countries subject to the ban that would allow the government to determine whether to issue a visa.
That leaves the possibility the administration would revise the procedures and dispense with the need for a moratorium on issuing visas, a conclusion that could render the appeal moot. Of course, whatever rationale the White House were to cite for revising the vetting procedures would need to be grounded in national security and not merely be a pretext for banning Muslims, which would subject the revised procedures to continued constitutional challenges.