Unsurprisingly, the judges on the 9th Circuit Court of Appeals, the most-overturned court in the Nation, ruled against Trump’s travel ban today. And, also unsurprisingly, the judges used specious legal reasoning to arrive at their conclusion. Let’s turn it over to Cornell University Law Professor William Jacobson of LegalInsurrection.com:
We’ve been here before. Another judicial opinion upholding an injunction against Trump’s Travel Order No. 2. This time from the 9th Circuit arising out of the injunction by the Hawaii District Court.
The Opinion (pdf.) is embedded below. The Trump administration already has the Hawaii injunction before the Supreme Court, as it previously filed for contingent review of a possible 9th Circuit decision, expecting a losing result. The 4th Circuit Opinion also is before the Supreme Court for a stay of the injunctions, the opposition to which is due today.
The 9th Circuit does not focus as heavily on Trump’s campaign statements as did the 4th Circuit in finding a constitutional violation. Rather, the main ground in the 9th Circuit Opinion is that Trump exceeded his authority under statutes. The court does address alleged “national origin discrimination” based on statutory prohibition. Here’s an excerpt from the introductory paragraphs summarizing the ruling:
The Immigration and Nationality Act (“INA”) gives the President broad powers to control the entry of aliens, and to take actions to protect the American public. But immigration, even for the President, is not a one-person show. The President’s authority is subject to certain statutory and constitutional restraints. We conclude that the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress. In suspending the entry of more than 180 million nationals from six countries, suspending the entry of all refugees, and reducing the cap on the admission of refugees from 110,000 to 50,000 for the
2017 fiscal year, the President did not meet the essential precondition to exercising his delegated authority: The President must make a sufficient finding that the entry of these classes of people would be “detrimental to the interests of the United States.” Further, the Order runs afoul of other provisions of the INA that prohibit nationality-based discrimination and require the resident to follow a specific process when setting the annual cap on the admission of refugees. On these statutory bases, we affirm in large part the district court’s order preliminarily enjoining Sections 2 and 6 of the Executive Order.
The 9th Circuit faulted the District Court for not ruling on these statutory grounds before reaching the constitutional issues (pp. 14-15). The 9th Circuit declined to rule on the constitutional claims, as it affirmed on statutory grounds:
After first determining that Plaintiffs have standing to assert their INA-based statutory claim, we conclude that Plaintiffs have shown a likelihood of success on the merits of that claim and that the district court’s preliminary injunction order can be affirmed in large part based on statutory grounds. For reasons further explained below, we need not, and do not, reach the Establishment Clause claim to resolve this appeal.
On the statutory authority ground, the Court second-guessed the justification in the Travel Order as to necessity. While the court speaks of it as a failure of Trump to meet his burden, in fact this is nothing more than the judiciary substituting its judgment for that of the president (italics in original):
Section 1182(f) requires that the President find that the entry of a class of aliens into the United States would be detrimental to the interests of the United States.11 This section requires that the President’s findings support the conclusion that entry of all nationals from the six designated countries, all refugees, and refugees in excess of 50,000 would be harmful to the national interest. There is no sufficient finding in EO2 that the entry of the excluded classes would be detrimental to the interests of the United States.
In fact, the Court reviewed the findings in the Order, but didn’t believe them. That’s not the Court’s role in this context.
If the citizens of a sovereign nation can’t decide who can come and who must go themselves, why the hell bother having a nation? Or elected representatives? Just be done with it and have the judges tell us what we can and can’t do. Just think how much more tax money we could spend researching the effects of climate change on the sex lives of gay polar bears if we didn’t have to fund the Congress or the presidency! It boggles the mind!