By Amy Davidson
In yet another blow to Donald Trump’s travel ban, the Ninth Circuit court has struck down his executive order.
Did President Donald Trump’s travel ban violate the Constitution, or just the law? Late last month, the Fourth Circuit found that the executive order in question, which suspends the entry into the United States of people from six predominantly Muslim countries and of all refugees, was a blatant act of religious prejudice, and so was barred by the Establishment Clause. It upheld a lower court’s nationwide injunction blocking the executive order. The Ninth Circuit, in a ruling on Monday, also upheld a different lower court’s order putting the ban on hold, but on the grounds that Trump had exceeded his powers under the Immigration and Nationalization Act. The two decisions—10–3 in the Fourth Circuit and 3–0 in the Ninth—led to the same place, and are in no way mutually exclusive; the Ninth Circuit emphasized that it hadn’t found on the constitutional question only because it didn’t need to: the order was flawed enough on statutory grounds, and the tradition of American jurisprudence is to avoid making grand constitutional pronouncements unless it is necessary. What the Ninth Court did, though, was give the Supreme Court more choices when it rules on the travel ban, as it almost certainly will.
One argument that both circuits made short work of was the government’s claim that the courts had no business reviewing the President’s national-security-related immigration declarations. The Ninth Circuit had already rejected that claim, with respect to an earlier version of the executive order. This time, after noting in a tone of some amazement that the Trump Administration was trying the same move again, the decision didn’t waste much space on the point, beyond observing that deference, which the courts do owe the President on national security, is not the same as “abdication.” The decision also cited Marbury v. Madison, the 1803 ruling that defined the courts’ role. The Supreme Court may still uphold the ban—Anthony Kennedy would likely be the swing vote, as he often is—though one would hope that it would at least confirm that it had a right to review it.
In a line that makes clear that even a relatively narrow decision, based in statutory grounds, can say a great deal about Presidential power, the Ninth Circuit decision noted that “immigration, even for the President, is not a one-person show.” A provision of the Immigration and Nationalization Act passed in 1952 gives the President the ability to exclude certain classes of foreigners if he makes a finding that their entry would be “detrimental” to the United States; another provision, passed in 1965, says that national origin itself cannot be a basis for discrimination in the issuance of immigrant visas. The government had argued that the earlier statute had more force than the later one (it is usually the other way around) and that, somehow, the executive order was not exactly about visas, per se, but just about keeping people out of the country. Keeping people out, of course, is accomplished through visas, and the court recognized the government’s claim for the semantic nonsense that it was. “We cannot blind ourselves to the fact that, for nationals of the six designated countries,” the decision notes, the order “is effectively a ban on the issuance of immigrant visas.” This is one way of saying that the court cannot blind itself to the plain meaning—and the discriminatory intent—of the order.
Such blindness is exactly what the Administration has been asking, indeed demanding, from the courts. Another way of looking at the difference between the Fourth and Ninth Circuit verdicts is as two different approaches to the problem of whether to believe what the President says. The Fourth Circuit, because it dealt with the Establishment Clause, looked closely at whether the executive order was really just a disguised version of the “complete and total” ban on Muslims coming into the United States that Trump had promised his supporters during the campaign. His lawyers said that it wasn’t—it didn’t use the word “Muslim,” after all—but the Fourth Circuit decision cited a litany of statements by Trump and his supporters arguing otherwise. (For example, when asked in an interview how he would get a ban on Muslims through the courts, Trump said that he would “call it ‘territories.’ ”) If that decision had been issued a couple of weeks later, it might have also cited the tweets that Trump sent out after the most recent terrorist attacks in London, in which he described the language of the most recent version of the order as “politically correct” and “watered down,” and suggested that he would act in a far broader and less restrained way the minute he shook all the judges who were tailing him. (These tweets were regarded as not helpful to his case.)
The Ninth Circuit, instead, looked at the words that Trump had used in his revised version, to see if they made sense on their own terms. It found that they did not. There was, to begin with, no real attempt to explain why he had found, as the statute requires, that admitting these people would be detrimental to the United States. This had been a criticism of the original order, and the Administration had tried to address it by pointing to conditions in the six countries (Iran, Somalia, Yemen, Libya, Sudan, and Syria), such as terrorist attacks and uncoöperative governments. These conditions were present, in some cases more severely, in other countries that were not named. But the central logical problem, for the court, was that the order targeted nationals of those countries, even if they had not been to them in years. As an illustration, the decision quoted the brief of the state of Hawaii, the principal plaintiff, which observed that the order “could have the paradoxical effect of barring entry by a Syrian national who has lived in Switzerland for decades, but not a Swiss national who has immigrated to Syria during its civil war.”
That’s what happens when you use “territories” as a synonym, or euphemism, for “Muslims.” They are different categories of things, and it just doesn’t work.
The Ninth Circuit, in an extraordinary footnote, which also cited Sean Spicer’s concession that @realDonaldTrump tweets counted as official Presidential statements, quoted one of those tweets to make its own point: “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!” (“Emphasis in original,” the footnote added.) While the Fourth Circuit had asked what the non-politically correct term that the President had in mind might be, the Ninth Circuit took him at his word, and then asked why, if he really cared about countries, he was banning people.
And why these people? As the decision noted, other countries (with perhaps better lobbyists) have been more implicated in terrorism. The one refugee turned terror plotter from any of the countries on the government’s list had come from Somalia as a preschooler, and was radicalized a decade and a half later. The Ninth Circuit found, in those facts, yet another indication that the President’s order was detached from the requirements of law. What it is attached to—bigotry, demographic panic, fear, a belief in the free-floating force of Presidential power—is another question, and one that has not been dispelled. It is available for the Supreme Court to work out.