Ninth Circuit Court Rules on Travel Ban 3.0

Today, Friday, Dec. 23, 2017, the Ninth Circuit Court of Appeals issued a ruling in Hawaii v. Trump upholding a nationwide injunction against President Donald Trump’s revised travel ban, dated Sept. 24, 2017, which seeks to ban immigration and many visitor visas for the citizens of six Muslim-majority countries.

Because of a prior order issued by the Supreme Court, the travel ban will, however, remain in effect for the time being.

“Once again, Hawai‘i’s spirit of ʻohana prevails—that nobody gets left behind and nobody gets targeted for unfair discrimination,” said Attorney General Doug Chin. “I have always believed that the rule of law, reinforced by Hawai‘i’s values, will win the day. Make no mistake: Our values of diversity and inclusion are America’s values, and they will light the way even through our darkest of hours.”

The court declared that the “[p]roclamation functions as an executive override of broad swaths of immigration laws that Congress has used its considered judgment to enact[,]” and noted that “[t]he Executive cannot without assent of Congress supplant its statutory scheme with one stroke of a presidential pen.”

The court further explained in its order today that:

For the third time, we are called upon to assess the legality of the president’s efforts to bar over 150 million nationals of six Muslim-majority countries from entering the United States or being issued immigrant visas that they would ordinarily be qualified to receive.

[The president’s] powers … are not without limit. We conclude that the president’s issuance of the proclamation once again exceeds the scope of his delegated authority. The government’s interpretation … not only upends the carefully crafted immigration scheme Congress has embodied in the [Immigration and Nationality Act], but it deviates from the text of the statute, legislative history and prior executive practice as well.

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The notion that the proclamation is unreviewable “runs contrary to the fundamental structure of our constitutional democracy.”

The court also noted that:

The government argues that the president, at any time and under any circumstances, could bar entry of all aliens from any country, and … [not] even the Supreme Court itself—would have Article III jurisdiction to review … we doubt whether the government’s position could be adopted without running roughshod over the principles of separation of powers enshrined in our Constitution.

On Dec. 6, 2017, the State of Hawai‘i argued in the Ninth Circuit Court of Appeals in support of Hawai‘i federal district court Judge Derrick K. Watson’s order enjoining President Trump’s latest travel ban nationwide, based on Hawai‘i’s argument that the ban violates federal immigration laws.