The legal fight against President Donald J. Trump’s Muslim travel bans ended 2017 with another victory for the State of Hawaii et al and the fight now enters its second year on 3 February 2018.
United States Courts of Appeals – Ninth Circuit, STATE OF HAWAII; ISMAIL ELSHIKH; JOHN DOES, 1 & 2; MUSLIM ASSOCIATION OF HAWAII, INC., Plaintiffs-Appellees, v. DONALD J. TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN M. NIELSEN, in her official capacity as Secretary of Homeland Security; U.S. DEPARTMENT OF STATE; REX W. TILLERSON, in his official capacity as Secretary of State; UNITED STATES OF AMERICA, 22 December 2017:
For the third time, we are called upon to assess the legality of the President’s efforts to bar over 150 million nationals of six designated countries1 from entering the United States or being issued immigrant visas that they would ordinarily be qualified to receive. To do so, we must consider the statutory and constitutional limits of the President’s power to curtail entry of foreign nationals in this appeal of the district court’s order preliminarily enjoining portions of § 2 of Proclamation 9645 entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats” (the “Proclamation”).
The Proclamation, like its predecessor executive orders, relies on the premise that the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., vests the President with broad powers to regulate the entry of aliens. Those powers, however, are not without limit. We conclude that the President’s issuance of the Proclamation once again exceeds the scope of his delegated authority. The Government’s interpretation of 8 U.S.C. § 1182(f) not only upends the carefully crafted immigration scheme Congress has enacted through the INA, but it deviates from the text of the statute, legislative history, and prior executive practice as well.
Further, the President did not satisfy the critical prerequisite Congress attached to his suspension authority: before blocking entry, he must first make a legally sufficient finding that the entry of the specified individuals would be “detrimental to the interests of the United States.” 8 U.S.C. § 1182(f). The Proclamation once again conflicts with the INA’s prohibition on nationality-based discrimination in the issuance of immigrant visas. Lastly, the President is without a separate source of constitutional authority to issue the Proclamation.
On these statutory bases, we affirm the district court’s order enjoining enforcement of the Proclamation’s §§ 2(a), (b), (c), (e), (g), and (h). We limit the scope of the preliminary injunction, however, to foreign nationals who have a bona fide relationship with a person or entity in the United States…..
For all of these reasons, we affirm in part and vacate in part the district court’s preliminary injunction order. We narrow the scope of the injunction to give relief only to those with a credible bona fide relationship with the United States, pursuant to the Supreme Court’s decision in IRAP, 137 S. Ct. at 2088. In light of the Supreme Court’s order staying this injunction pending “disposition of the Government’s petition for a writ of certiorari, if such writ is sought,” we stay our decision today pending Supreme Court review. Trump v. Hawai‘i, No. 17A550, — S. Ct. —, 2017 WL 5987406 (Dec. 4, 2017). Because we conclude that Plaintiffs have shown a likelihood of success on their statutory claims, we need not reach their constitutional claims.
Video of closing argument on behalf of Plaintiffs-Appellees:
The matter is ongoing in 2018.
Background can be found at University of Michigan Law School, Civil Rights Litigation Clearing House.
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