9th Circuit Court Rejects Muslim Ban

Image via Getty.
Image via Getty.

On Monday, the three judges on the 9th Circuit Court of Appeals passed a unanimous decision to continue to block the Trump administration’s revised travel ban, which barred individuals from six Muslim-majority countries for 90 days and refugees for 120 days. The ruling comes less than one month after the 4th Circuit Court of Appeals found the ban unconstitutional. The Justice Department supports the ban and will take the case to the Supreme Court.


The 9th Circuit decision did not declare the ban unconstitutional. Instead, the judges found Trump’s ban “exceeded the scope of the authority delegated to him by Congress” by The Immigration and Nationality Act, a federal immigration law.

“The Immigration and Nationality Act (“INA”) gives the President broad powers to control the entry of aliens, and to take actions to protect the American public,” the opinion read. “But immigration, even for the President, is not a one-person show. The President’s authority is subject to certain statutory and constitutional restraints.”

The decision argued that the administration failed to justify why 180 million people should be banned based on nationality:

“The order makes no finding that nationality alone renders entry of this broad class of individuals a heightened security risk to the United States. The order does not tie these nationals in any way to terrorist organizations within the six designated countries. 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. In short, the order does not provide a rationale explaining why permitting entry of nationals from the six designated countries under current protocols would be detrimental to the interests of the United States.”

Similarly, the judges argued that Trump failed to “reveal any threat or harm to warrant suspension” of refugees “for 120 days and does not support the conclusion that the entry of refugees in the interim time period would be harmful.”

ABC News’ Kate Shaw explains, however, how the 9th Circuit decision complicates the case against the ban. “The 9th Circuit opinion reaches the same conclusion—that the order is in large part invalid—but takes a totally different route,” she said, comparing it the to the 4th Circuit ruling, which found the ban unconstitutional. “It doesn’t reach the constitutional argument at all, instead concluding that the order exceeded the president’s statutory authority. This could conceivably provide some members of the Supreme Court with an alternative means by which to strike down the order, if they’re dubious about the order but not totally convinced by the constitutional arguments against it or if they wish to avoid the difficult question of whether and when it’s appropriate to rely on presidential statements or campaign statements.”


Reacting to the decision, White House Press Secretary Sean Spicer said, “We continue to be confident that the president’s executive order to protect this country is fully lawful and ultimately will be upheld by the Supreme Court.” The Supreme Court has not yet said whether it will take up the case.

Prachi Gupta is a senior reporter at Jezebel.


The Noble Renard

ABC News’ Kate Shaw explains, however, how the 9th Circuit decision complicates the case against the ban.

I think that should read “complicates the case for the ban.” The fact that the Ninth Circuit agreed that the ban violates the INA without having to resort to the constitutional question makes it more likely that the Justices will uphold the injunctions against it, not less likely. Now the Justices can decide that the ban is against the law without even having to dive into the mud puddle full of Trump tweets that have formed the backbone of a lot of the previous discussion. This will also greatly complicate the government’s request for a stay, because the Ninth Circuit did agree with the government that they could move forward with the review of the visa measures that they claim is the reason for the travel ban. So by the time the Supreme Court hears the case, the 90 days will almost certainly have already passed, meaning that the Court has even less of a reason to issue a stay than before.*

The decision was really great, because it firmly addressed the statutory questions that all the other courts have totally dodged so far. Not only did they write such great language like the parts quoted above about why the ban isn’t valid even under the statute that the President has claimed, but they also stated quite clear that the anti-discrimination provisions of INA § 202(a)(1)(A) (8 USC § 1152(a)(1)(A)), which provide that “no person shall ... be discriminated against in the issuance of an immigrant visa because of the person’s ... nationality.” The government had previously argued in front of both the Ninth Circuit and the Fourth Circuit that the anti-discrimination provision didn’t restrict the president’s authority, but the Ninth Circuit said firmly that that was a ridiculous argument, because the anti-discrimination provision was more recent, more specific, and that allowing the President to ignore it would give the President the authority to simply rewrite immigration laws willy-nilly even where Congress had specifically prevented something.

In short. Thank you Ninth Circuit, you “so-called judges” you.

*I’m still putting it at almost 100% chance that the Court does in fact hear the case, but with this decision coming now I think the Court will have some pressure relieved to hear it on shorter notice than usual.