President Donald Trump’s revised executive order on immigration suffered another major setback Monday, when a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled unanimously in favor of Hawaii to uphold a preliminary injunction against the travel ban.
In its 86-page opinion, the 9th Circuit ruled that the revised order failed to provide a valid reason for temporarily excluding citizens of six Muslim-majority countries — Iran, Libya, Somalia, Sudan, Syria and Yemen.
“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 wrote. “National security is not a ‘talismanic incantation’ that, once invoked, can support any and all exercise of executive power.”
In so ruling, the judges invoked Trump’s tweet from a week ago:
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!
— Donald J. Trump (@realDonaldTrump) June 6, 2017
“Indeed, the president recently confirmed his assessment that it is the ‘countries’ that are inherently dangerous, rather than the 180 million individual nationals of those countries,” the judges wrote, quoting Trump’s tweet in full.
The 9th Circuit’s decision came nearly three weeks after the 4th U.S. Circuit Court of Appeals in Virginia ruled in a separate case that the travel ban is unconstitutional, saying it’s “steeped in animus and directed at a single religious group” rather than necessary for national security.
In its opinion, the 4th Circuit cited Trump’s campaign statements calling for a “total and complete shutdown” on Muslims entering the U.S. as evidence that the revised order violates the First Amendment’s establishment clause.
But the 9th Circuit, which heard arguments in Seattle last month, found no need to analyze past statements by Trump and his aides.
Instead, the 9th Circuit’s three judges — Michael Hawkins, Ronald Gould and Richard Paez, all of whom were appointed by former President Bill Clinton — ruled that the travel ban ran afoul of a provision in federal immigration laws that forbids discrimination based on “the person’s race, sex, nationality, place of birth or place of residence.”
The judges also left intact U.S. District Court Judge Derrick Watson‘s injunction against a provision of the travel ban that suspends the U.S. refugee program for 120 days, saying that Trump has to consult with Congress in setting an annual cap on the number of refugees.
“The actions taken in (the revised order) required the president first to make sufficient findings that the entry of nationals from the six designated countries and the entry of all refugees would be detrimental to the interests of the United States,” the judges wrote. “We conclude that the president did not satisfy this precondition before exercising his delegated authority.”
At a press conference in Honolulu on Monday, Hawaii Attorney General Douglas Chin said the 9th Circuit’s decision proves that “our system of checks and balances, enshrined in the Constitution for more than 225 years, remains in place.”
Chin added that the U.S. Supreme Court will likely be receptive to the 9th Circuit’s decision, given that it wasn’t based on constitutional grounds.
“I have to say I’m more cautiously optimistic,” Chin said. “A lot of people were saying they didn’t know if the Supreme Court would go along with all the decisions … on the constitutional grounds. But they are thinking that, when it comes to immigration statutes, we might have a chance to convince even the most conservative justices.”
Gov. David Ige said Hawaii’s decision to challenge the travel ban was vindicated by the 9th Circuit.
“Hawaii made the right decision in challenging a travel ban that had little factual basis and discriminated based strictly on national origin and religion,” Ige said in a statement. “We will continue to stand against any attempts to erode the Constitution’s protections and to violate existing laws.”
But U.S. Attorney General Jeff Sessions insisted the 9th Circuit’s decision harms national security.
“The executive branch is entrusted with the responsibility to keep the country safe under Article II of the Constitution,” Sessions said in a statement. “Unfortunately, this injunction prevents the president from fully carrying out his Article II duties and has a chilling effect on security operations overall.”
White House Press Secretary Sean Spicer said the Supreme Court will ultimately side with Trump.
“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,” Spicer told reporters at the White House. “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.”
The 9th Circuit did give the Trump administration a small win of sorts, ruling that Watson erred in restricting it from conducting an internal review to assess vetting procedures.
But, in a brief filed just hours earlier in the Supreme Court, Neal Katyal, a lead attorney for Hawaii, told the justices that the state had no objection to the internal review.
“The executive is free to engage in any manner of study, review, upgrade or revision of its existing vetting procedures,” Katyal wrote, as he urged the justices to uphold the injunction against the travel ban. “So long as the order did not use these provisions to justify or expand a veiled Muslim ban, they would survive judicial review.”
Chin says it’s a “practical guarantee” that the Supreme Court will weigh in on the 9th Circuit’s decision — once the Trump administration appeals it, as it did with the 4th Circuit’s.
By the time the Supreme Court hears the case in the fall, however, it might be moot, given that the revised order was supposed to be only temporary.
But Chin said the Supreme Court is unlikely to dismiss the case “on that kind of technical grounds.”
“There’s enough constitutional need … and substance that’s in front of them that I get the feeling that they’re going to rule on” the case, Chin said.
The Associated Press contributed to this report.