President Trump should thank the appeals court that refused to reinstate his travel ban.
In its ruling on Thursday, the Ninth Circuit mapped out how the administration can narrow the executive order that enshrines the ban in ways that might withstand judicial scrutiny.
Which is what the president said on Friday that his administration is trying to do, regardless of his bluster about the legal system being broken and vows to see opponents in court.
As Judges William Canby, Richard Clifton and Michelle Friedland noted, the executive order suffers from a series of defects that include a failure to uphold procedural protections provide by the due process clause of the Fifth Amendment.
By the terms of the amendment, those protections “apply to all ‘persons’ within the U.S., including aliens,” they wrote, regardless of “whether their presence is lawful, unlawful, temporary or permanent.” [citations omitted] “Those rights also apply to certain aliens attempting to re-enter the U.S. after traveling abroad,” the court added.
Here are some ways the White House can revise the order to comport with the Constitution, based on the ruling.
Acknowledge that lawful permanent residents (LPRs) and non-immigrant visa holders have due process rights. Due process requirements give LPRs and visa holders a right to notice and a hearing that includes an opportunity to present reasons why their travel should not be restricted. As issued, the executive order disregards those rights.
Clarify that lawful permanent residents have the right to re-enter the country after traveling abroad. At oral argument, counsel for the government noted that several days after the order was issued the White House counsel said the travel ban does not apply to LPRs. That didn’t persuade the judges, who wrote that “the White House counsel is not the president, and he is not known to be in the chain of command for any of the executive departments.”
Reinstate the refugee program. As issued, the executive order suspends the country’s refugee program for 120 days, and suspends the entry of all Syrian refugees indefinitely. But U.S. law gives refugees the right to apply for asylum.
Clarify that the executive order does not affect the due process rights of U.S. citizens. That includes, as the court noted, citizens “who have an interest in specific non-citizens’ ability to travel to the U.S.” Examples include a citizen who challenges a decision to deny a visa to her non-citizen spouse, or citizens for whom denial of a visa to a non-resident alien may constitute a violation of their constitutionally protected rights.
Strike the prioritization for religious minorities. The executive order allows the government to make case-by-case exceptions to the travel, admission and refugee provisions for religious minorities in their countries of origin. Three days after the order was issued, the president said that Christians from Syria would be given priority over other refugees seeking to enter the U.S. That violates the Establishment Clause of the First Amendment, the states that sued the government charged. The Ninth Circuit reserved consideration of the claim, but noted that “the states’ claims raise serious allegations and present significant constitutional questions.”
Of course, the White House has options besides revising the executive order. They include an appeal to the Supreme Court, continuing to litigate before the Ninth Circuit, or trying to justify the order in the trial court.