The Ninth Circuit misread the law that underpins the president’s exclusion of visitors to the United States from six majority-Muslim countries, the government argues in a new round of papers that ask the Supreme Court to reinstate the travel ban.
The Immigration and Nationality Act (INA) requires only that the president find entry of a group of visitors to the U.S. would be detrimental to the nation’s interests, regardless of whether Congress comes to the same conclusion, says the government in a brief filed on Thursday. Thus, the appeals court erred when it ruled on June 12 that the travel ban has no basis in the record and therefore exceeds the president’s authority, the government says.
“The court of appeals read into that provision a requirement that, before suspending entry, the president must articulate a factual finding — satisfactory to courts — that support[s] the conclusion that entry of all nationals whose entry he suspends would be harmful to the national interest,” writes the government. “That requirement turns the statute’s text on its head.” [internal quotes omitted]
In its ruling, the Ninth Circuit noted that the executive order containing the ban does not discuss any instances of terrorism in the U.S. by citizens of Iran, Libya, Sudan, Syria or Yemen — an omission the State of Hawaii and others challenging the ban raised before the appeals court and are likely to assert in their brief, which is due this Tuesday. The executive order cites one example of domestic terrorism by a native of Somalia who came to the U.S. at the age of 2.
Uncertainty alone justifies a ban, White House says
Besides relying on a series of State Department reports from 2016, the administration cited no evidence to support its assertion of a threat to national security posed by residents of the six countries. The omission explains in part why the challengers say the reasons for the ban offered by the White House are a pretext to disfavor Islam in violation of the Establishment Clause.
In its brief to the court, the government says the president imposed the travel ban “in the face of uncertainty over whether these foreign governments that sponsor or shelter terrorism are able and willing to provide” information that would allow the Departments of State and Homeland Security to determine whether entry of visitors from those countries constitutes a threat.
The uncertainty alone justifies a halt for three months on visitors while the administration ascertains whether each of the countries can screen travelers sufficiently, says the government.
The administration also urges the justices to overrule a finding by the Ninth Circuit that the travel bank violate the INA’s prohibition on discrimination based on nationality in the issuance of visas. That bar does not apply to the president’s ability to restrict entry of visitors, the government contends.