Sunday, June 18, 2017
On June 12, a unanimous three judge panel of the United States Court of Appeals for the Ninth Circuit declined to reinstate Trump’s revised executive order seeking a 90-day travel ban for nationals from six predominantly Muslim countries. It was the second appeals court to do so.
The administration has already appealed a decision issued last month by the Fourth Circuit to the Supreme Court. The Fourth Circuit’s decision relied on the First Amendment’s Establishment Clause, finding that the president’s action “speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”
In contrast, the Ninth Circuit relied on statutory grounds, not reaching Constitutional arguments. “We need not, and do not, reach the Establishment Clause claim to resolve this appeal,” the court opined. Contrary to Trump’s presumption of untrammeled authority, the judges ruled that “Immigration, even for the President, is not a one-person show…National Security is not a ‘talismanic incantation’ that, once invoked, can support any and all exercise of executive power.” Trump, they found, exceeded his authority, because his justification for the ban was inadequate.
“The Order does not tie these nationals in any way to terrorist organizations within the six designated countries,” the panel wrote. “It does not identify these nationals as contributors to active conflict or as those responsible for insecure country conditions. It does not provide any link between an individual’s nationality and their propensity to commit terrorism or their inherent dangerousness.” Accordingly, the order “does not offer a sufficient justification to suspend the entry of more than 180 million people on the basis of nationality.”
The judges cited a June 5 tweet from Trump, in which he said "That's right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won't help us protect our people!" The panel cited White House press secretary Sean Spicer's confirmation that the President's tweets are "considered official statements by the President of the United States."
As former Justice Department spokesman Matthew Miller told the Washington Post, Trump has “lost on statutory grounds. He’s lost on constitutional grounds. He’s lost in the east, the west, and even on an island floating in the Pacific. He’s lost on his first order, and he’s lost on his second ‘politically-correct, watered down’ version.” And he concludes that “For a president who promised we’d get tired of all of his winning, his travel ban has been a catastrophe from day one.”
Spicer remained unbowed. “Frankly, I think any lawyer worth their salt 100 percent agrees that the president is fully within his rights and his responsibilities to do what is necessary to protect the country,” he said. “I think we can all attest that these are very dangerous
times and we need every available tool at our disposal to prevent terrorists from entering the United States.”
Despite the use of his tweet in the Ninth Circuit’s decision-making, Trump doubled down on the outbursts that hurt his case, saying on Twitter, “Well, as predicted, the 9th Circuit did it again - Ruled against the TRAVEL BAN at such a dangerous time in the history of our country. S.C.” His words may come back to haunt him, again.