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Appeals court rules against Trump travel ban 3.0

"Supreme Court Cancels Hearing on Previous Trump Travel Ban"

Decision to block presidential order won't have immediate effect due to Supreme Court stay.

By JOSH GERSTEIN

12/22/2017 08:08 PM EST

A federal appeals court ruled that the latest version of President Donald Trump's controversial travel ban policy should be partially blocked because the president appears to have exceeded his authority in issuing the directive.

However, the unanimous decision .. https://www.politico.com/f/?id=00000160-811d-da22-ad65-e7ffa71c0001 .. issued Friday by a three-judge panel of the 9th Circuit Court of Appeals will have no immediate effect because of a temporary ruling the Supreme Court issued earlier this month allowing the administration to fully implement the ban as it appealed a pair of injunctions issued against the policy.

The policy Trump issued in September limits issuance of visas to citizens of six majority-Muslim countries.

9th Circuit Judges Michael Daly Hawkins, Ronald Gould and Richard Paez issued a 71-page joint opinion saying the president's order arrogates power that Congress reserved through legislation it passed.

"The Executive cannot without assent of Congress supplant its statutory scheme with one stroke of a presidential pen," wrote the judges, all of whom are appointees of President Bill Clinton.

"We conclude that the Proclamation conflicts with the statutory framework of the INA by indefinitely nullifying Congress’s considered judgments on matters of immigration," the 9th Circuit panel added. "The Proclamation’s stated purposes are to prevent entry of terrorists and persons posing a threat to public safety, as well as to enhance vetting capabilities and processes to achieve that goal....Yet Congress has already acted to effectuate these purposes."

The opinion does not grapple with some of the thorniest legal questions raised by Trump's travel ban orders: whether they're unconstitutional because they stem from his calls for a Muslim ban during the presidential campaign last year or similar sentiments he has hinted at while in office.

However, the judges did say that the concerns of Muslims about the impact of the order buttressed the case for an injunction.

"It cannot be in the public interest that a portion of this country be made to live in fear," the court wrote.

While the appeals court panel deemed Trump's order illegal, the judges did not say it should be completely halted. Instead, they said it should be barred from impacting issuance of visas to foreigners who have a bona fide tie to the U.S., such as an American relative or a concrete connection to an employer or university in the U.S.

Justice Department spokeswoman Lauren Ehrsam responded to the ruling by highlighting that the Supreme Court's stay order remains in place.

"We are pleased that the Supreme Court has already allowed the government to implement the Proclamation and keep all Americans safe while this matter is litigated. We continue to believe that the order should be allowed to take effect in its entirety," Ehrsam said in a statement.

One problem the appeals court judges found with Trump's directive is that it appears to be indefinite in duration, but the legal provision it is based on implies that such a move should be temporary.

"Congress’s choice of words is suggestive, at least, of its hesitation in permitting the President to impose entry suspensions of unlimited and indefinite duration," the 9th Circuit judges wrote. "The Government has repeatedly emphasized that the travel restrictions are necessary to incentivize and pressure foreign governments into improving their information-sharing and identity-management practices. This creates a peculiar situation where the restrictions may persist ad infinitum."

Justice Department lawyers argued that the restrictions are not indefinite, because the policy is subject to review every six months, but the 9th Circuit panel mocked that contention.

"To paraphrase a well-known adage, the Proclamation’s review process mandates that the restrictions will continue until practices improve," the judges wrote.

The San Francisco-based 9th Circuit decision largely upheld an injunction issued by a Hawaii-based judge in October. Another appeals court, the Richmond, Va.-based 4th Circuit is considering whether to approve or reject an injunction issued by a federal judge based in Greenbelt, Md.

Technically, the 9th Circuit ruling Friday was not a final decision from the appeals court panel but a ruling that the preliminary injunction issued by the Hawaii judge should remain in place, at least in part, while the case is litigated further. The suit was brought by the State of Hawaii, the imam who heads a Muslim group in that state, and others.

Trump's latest order also affects some would-be travelers from two nations with governments sharply at odds with the U.S. North Korea and Venezuela, although those restrictions were not challenged in the suit ruled on Friday.

https://www.politico.com/story/2017/12/22/trump-travel-ban-appeal-block-317892

Appeals courts certainly still seem to generally give Trump's 3.0 a thumbs down. At least in part.