Ninth Circuit – Beesquared

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.

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.