Trump Loses Again in 9th Circuit on Travel Ban

By Jeralyn, Section Trump Administration
Posted on Mon Jun 12, 2017 at 01:36:45 PM EST
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The 9th Circuit Court of Appeals has upheld the freeze on Trump's travel ban.

A West Coast federal appeals court upheld the freeze on President Trump’s travel ban Monday, declaring that Trump had exceeded his lawful authority in suspending the issuance of visas to residents of six Muslim majority countries and suspending the U.S. refugee program.

...Unlike other courts in the past, the three judges on the 9th Circuit did not dwell on Trump’s public comments. Instead, they ruled that Trump’s travel ban lacked a sufficient national security or other justification that would make it legal.

Trump will probably turn more effort to packing the courts with conservative judges. Rather, he'll let the Federalist Society do the picking. I doubt he'd know how to pick a judge on his own.

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Trump Loses Again in 9th Circuit on Travel Ban | 6 comments (6 topical)

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The Ninth Circuit (5.00 / 1) (#2)
by KeysDan on Mon Jun 12, 2017 at 05:01:44 PM EST

upheld District Judge Watson's freeze (enjoined on Constitutional grounds, in that it violated the First Amendment's Establishment Clause by disfavoring Muslims), on the basis of statutory grounds, holding that Trump exceeding his authority and acted unlawfully.

The statute, INA, does permit the president to act in the national interest, but it also requires that the president "find" or rationally determine (rather than speculate) that a class of alien is a threat, so as to support the conclusion of being harmful to the national interest.

The Court's examination to determine if Trump satisfied INA requirements came up empty-handed and was, therefore, unlawful. For example, a link was not demonstrated between an individual's nationality and their natural tendency to commit terrorism. It was more of a blacklisting.

So, while a different approach was taken by the Ninth Circuit, the statutory defects, never-the-less, affirmed Judge Watson.

The Court did reverse a portion of Judge Watson's order, so as to, in effect, clarify that the Administration was not prevented from reviewing or improving its vetting processes while litigation continues (Trump had claimed that the order had halted any study process). Now, the DOJ does not have that excuse to move ahead with the vetting issue. And, the Supreme Court, if/when it gets there can, if it desires, deal with the ban on an executive overreach matter v. a constitutional violation.

: Today's opinion is a masterpiece (5.00 / 4) (#5)
by Peter G on Mon Jun 12, 2017 at 07:53:13 PM EST

of conservative-style, restrained, precisely logical and meticulously supported statutory construction. The court finds it entirely unnecessary even to address any of the constitutional issues. A major contribution to winning at the Supreme Court.

It's an 86-page "per curiam" opinion (none / 0) (#1)
by Peter G on Mon Jun 12, 2017 at 02:41:18 PM EST

Meaning, not signed by any one of the three judges on the panel. (Link will download entire 86-page opinion as a PDF.) While the "per curiam" designation is sometimes used for less formal opinions, in this instance I think it implies that all three judges' chambers contributed to the opinion, and may further imply that the court institutionally stands behind the opinion in a political climate where judges are attacked by ignorant individuals and forces as expressing their personal political preferences rather than as applying the law impartially, as best they are able. Interesting detail - footnote 14 on pages 40-41 cites Tr*mp's June 5, 2017, tweet on the subject as further evidence in support of the court's conclusions, just as his advisers feared might happen.

: Actually, it's only a 78-page opinion (none / 0) (#3)
by Peter G on Mon Jun 12, 2017 at 05:09:46 PM EST

The final 8 pages contain a listing of all the organizations that filed briefs in the case, and all the lawyers who worked on those briefs.

: Judge Paez is a really good guy (none / 0) (#6)
by MKS on Mon Jun 12, 2017 at 08:48:24 PM EST

Orrin Hatch was terrified he would be appointed to the Supreme Court.
Wish he had been.

Hawaii 2, Trump 0. (none / 0) (#4)
by Donald from Hawaii on Mon Jun 12, 2017 at 07:33:07 PM EST

This, of course, follows the smackdowns by Washington state and Minnesota in federal court, and by the ACLU in the 4th Circuit Court of Appeals. So much winning. When are Trump, Sessions, et al., going to take a hint?