This column by ACRU General Counsel Ken Klukowski was published December 23, 2017 by Breitbart.
A federal appeals court on Friday invalidated President Donald Trump’s immigration policy yet again, although the Supreme Court has a standing order in place keeping the president’s policy in effect until the justices can review the challenge.
The third installment of the trilogy of legal challenges to the president’s travel policy arrived shortly before Christmas.
It began when President Trump issued Executive Order 13769 in January, temporarily restricting immigration from several terror-prone nations, in what came to be called the “travel ban.” When it ran into initial legal trouble, that measure was succeeded by Executive Order 13780 in March, which was another temporary measure. The lower courts blocked that one as well, though the Supreme Court weighed in at the end of June in Trump v. IRAP, allowing much of the order to go into effect while a final policy was being developed.
That final policy came on September 24, when President Trump issued Presidential Proclamation 9645. It invoked the authority Congress granted all presidents decades ago in 8 U.S.C. § 1182(f) to “suspend the entry of … any class of aliens” “for such a period as he shall deem necessary” when he believes their entry would be “detrimental to the interests of the United States.”
Represented by former U.S. Deputy Solicitor General Neal Katyal and a formidable team from a global powerhouse law firm, the plaintiffs renewed their legal challenge to the president’s policy limiting immigration from specified terror-prone nations, They raised multiple claims under various statutes, including the Administrative Procedure Act, the Immigration and Nationality Act (INA), and the First and Fifth Amendments of the U.S. Constitution.
The same federal judge in Hawaii who blocked the previous measures, Judge Derrick Watson, once again issued a preliminary injunction blocking the final policy.
The U.S. Department of Justice appealed that injunction to the U.S. Court of Appeals for the Ninth Circuit, where a three-judge panel of Clinton-appointed judges predictably concluded yet again that the president’s policy is illegal.
The panel held:
We conclude that the President’s issuance of the Proclamation once again exceeds the scope of his delegated authority. The Government’s interpretation of 8 U.S.C. § 1182(f) not only upends the carefully crafted immigration scheme Congress has enacted through the INA, but it deviates from the text of the statute, legislative history, and prior executive practice as well.
The San Francisco-based appeals also held that “before blocking entry, [the president] must first make a legally sufficient finding that the entry of the specified individuals would be ‘detrimental to the interests of the United States.’”
“The Proclamation once again conflicts with the INA’s prohibition on nationally-based discrimination in the issuance of immigrant visas,” the court continued, citing another portion of that federal statute, and ruling that the relevant provision superseded the president’s authority in Section 1182(f) to exclude aliens.
The Ninth Circuit quotes the president in his proclamation, where he determined, “absent the measures set forth in this proclamation, the immigrant and nonimmigrant entry into the United States of [the restricted types of persons] would be detrimental to the interests of the United States.”
The appellate court’s decision discussed how the policy was crafted during the president’s first year in office. Various agencies worked together to develop “extreme vetting” to keep dangerous persons from entering the United States.
After consulting with Secretary of State Rex Tillerson, Attorney General Jeff Sessions, and Director of National Intelligence Dan Coates, Acting Secretary of Homeland Security Elaine Duke found 16 countries to have inadequate “identity-management protocols, information-sharing practices, and risk factors” for vetting immigrants from those nations, and deemed another 31 countries “at risk” of being found inadequate.
In the end, Proclamation 9645 places restrictions on immigrants entering the United States from eight countries: Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. The plaintiffs in this lawsuit challenged those restrictions only insofar as they applied to the six nations on the list in which the population is majority Muslim.
The Ninth Circuit attempted to distinguish this policy from other restrictions, noting that this policy’s restrictions could last indefinitely if conditions do not change in those nations. The court reasoned that “the Proclamation risks producing a virtually perpetual restriction—a result that the plain text of § 1182(f) heavily disfavors for such a far-reaching order.”
“Congress has delegated substantial power in this area to the Executive Branch, but the Executive may not exercise that power in a manner that conflicts with the INA’s finely reticulated regulatory scheme governing the admission of foreign nationals,” the panel continued.
The Ninth Circuit then adopted a rule developed in 1986 by a panel of the U.S. Court of Appeals for the District of Columbia Circuit. The D.C. Circuit ruled that “the Executive cannot use general exclusionary powers conferred by Congress to circumvent a specific INA provision without showing a threat to public interest, welfare, safety or security.”
That D.C. Circuit decision, however, was authored by none other than Ruth Bader Ginsburg when she served on that court prior to the Supreme Court, joined by another liberal judge. The third judge on that panel was Judge Robert Bork, one of the most brilliant and conservative judges in American history, who vigorously dissented from the D.C. Circuit’s new rule. It is not at all clear that the Supreme Court would side with now-Justice Ginsburg’s theory as to what is required under the relevant federal law.
Having decided the case on statutory grounds, the Ninth Circuit did not reach the constitutional issues in the case.
Jeff Sessions’ Justice Department has 90 days from Friday’s decision to petition the U.S. Supreme Court to take the case, which will almost certainly happen. If so, the case would likely be argued in October 2018, with a decision by the summer of 2019.
In the meantime, under the Supreme Court’s stay order of December 4, 2017, President Trump’s policy will remain in force while the litigation is ongoing.
The case is Hawaii v. Trump, No. 17-17168 at the U.S. Court of Appeals for the Ninth Circuit.