Ninth and Fourth Circuits Uphold Nationwide Preliminary Injunction on Travel Ban; Administration Seeks Supreme Court Review

In a scathing rebuke of the Administration’s executive order travel ban, the U.S. Court of Appeals for the Fourth Circuit upheld the nationwide preliminary injunction, enjoining the Administration from implementing it. Here’s what that court had to say: “The question for this Court, distilled to its essential form, is whether the Constitution … remains ‘a law for rulers and people, equally in war and in peace.’ And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles — that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation. Therefore, for the reasons that follow, we affirm in substantial part the district court’s issuance of a nationwide preliminary injunction. . . .”

The Administration has sought Supreme Court review of the Fourth Circuit’s decision, despite the Ninth Circuit also deciding the travel ban to be unconstitutional. That court determined that the President had not conducted the requisite factfinding to justify halting immigration based on nationality. It held: “We conclude that the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress. In suspending the entry of more than 180 million nationals from six countries, suspending the entry of all refugees, and reducing the cap on the admission of refugees from 110,000 to 50,000 for the 2017 fiscal year, the President did not meet the essential precondition to exercising his delegated authority: The President must make a sufficient finding that the entry of these classes of people would be “detrimental to the interests of the United States.” Further, the Order runs afoul of other provisions of the INA that prohibit nationality-based discrimination and require the President to follow a specific process when setting the annual cap on the admission of refugees. On these statutory bases, we affirm in large part the district court’s order preliminarily enjoining Sections 2 and 6 of the Executive Order.”

Both the Ninth and Fourth Circuit decisions leaned heavily on the President’s statements and tweets made during his volatile campaign. In addition to deciding the constitutionality of the executive order, the Supreme Court will have to determine if applying this rhetoric is permissible during the legal analysis of the executive order. Therefore, the upcoming Supreme Court decision will not only provide the final say in the travel ban fiasco, but could also have a tremendous impact on future presidential campaigns. Meanwhile, there have been reports that visa travel from the targeted countries has plummeted.

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