(CN) – The Ninth Circuit on Monday became the second federal appeals court to uphold a stay of President Donald Trump’s revised travel ban, even as he presses the Supreme Court to reinstate it.
The administration on June 1 asked the U.S. Supreme Court to let the ban take effect while the justices decide whether to review the Fourth Circuit ruling.
The three-judge Ninth Circuit panel ruled that Trump exceeded the scope of his authority in issuing the revised travel ban and largely upheld a ruling in Hawaii federal court that prevented the implementation of a ban on all travelers from six Muslim-majority countries.
“Immigration, even for the President, is not a one-person show,” the 86-page opinion states. “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.’”
Specifically, the panel focused on areas where the executive order clashed with established immigration law, saying the apparent legal contradictions put Trump in a “weakened” position legally.
“If there were such consensus between Congress and the President, then we would view Presidential power at its maximum, and not in the weakened state based on its conflict with statutory law,” the panel’s per curiam opinion states.
Furthermore, unlike previous rulings that heavily focused on Trump’s campaign statements about shutting down Muslim immigration, Monday’s ruling focused on the lack of actual justifications for the travel ban.
“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 panel wrote.
Trump’s Justice Department has consistently argued that the president has broad discretion when it comes to the nexus between immigration and national security, and that both orders were well within established presidential purview.
U.S. Attorney General Jeff Sessions resurrected that argument outside of the courtroom Monday, issuing a statement saying President Trump was well within the scope of his authority and vowing to appeal the Ninth Circuit decision to the Supreme Court.
“President Trump knows that the country he has been elected to lead is threatened daily by terrorists who believe in a radical ideology, and that there are active plots to infiltrate the U.S. immigration system — just as occurred prior to 9/11,” Sessions said. “The President is committed to protecting the American people and our national security, and we are proud to support his mission to put America first by defending his right to keep us safe.”
The Ninth Circuit panel rejected that line of reasoning in its opinion.
“National security is not a ‘talismanic incantation’ that, once invoked, can support any and all exercise of executive power,” the ruling states.
The ruling marks the second defeat for the Trump administration in the Ninth Circuit, with both decisions focusing on the presence of unconstitutional religious discrimination against Muslims embedded in each executive order. The first one was issued a week after Trump assumed office and a second, revised travel ban came in early March.
In the first case, the state of Washington sued the Trump administration, saying the ban was a thinly veiled attempt at harming Muslims. U.S. District Court Judge James Robart granted Washington a temporary restraining order, preventing implementation of the ban. The Ninth Circuit refused in February to reinstate the first travel ban.
Rather than appealing, the Trump administration revised the travel ban in a new executive order issued March 6.
This time around, Hawaii sued and U.S. District Court Judge Derrick Watson granted a temporary restraining order for similar reasons.
After Watson’s ruling, U.S. Attorney General Jeff Sessions criticized it by saying he was “amazed that a judge sitting on an island in the Pacific can issue an order that stops the President of the United States from what appears to be clearly his statutory and constitutional power.”
President Trump has used his personal Twitter account to launch attacks on judges who have blocked his order and on the judiciary in general.
On June 5, the morning after terrorist attacks in London, Trump took to social media to lambast the courts as “slow and political.”
“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!” the president tweeted. (Emphasis in original.)
The Ninth Circuit only cited the above tweet in a footnote as evidence that Trump views the six countries — Somalia, Iran, Syria, Libya, Sudan and Yemen — as inherently dangerous, but further notes his administration has yet to provide any compelling evidence the countries are hotbeds for terrorists.
Trump has not yet commented on the latest ruling from the Ninth Circuit.
Sessions said the Justice Department will appeal Monday’s ruling to the Supreme Court, which is already weighing whether to take up the Fourth Circuit appeal.
New York Attorney General Eric Schneiderman and 16 other attorneys general filed an amicus brief with the Supreme Court on Monday, arguing the high court should not review the preliminary injunction against Trump’s travel ban.
“Since day one, attorneys general have not hesitated to fight back against President Trump’s unlawful and unconstitutional executive orders, bringing legal action in courts around the country to successfully stop both the first and second bans,” Schneiderman said in a statement. “As we’ve argued, President Trump’s second executive order is just a Muslim ban by another name – and the courts have agreed.”
The attorneys general joining Schneiderman in the amicus brief are from California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington and the District of Columbia.
A second amicus brief, authored by Virginia Attorney General Mark Herring and Maryland Attorney General Brian Frosh, argues the Trump administration’s request to allow the ban to go into effect pending appeal should be denied.
Shayan Modarres, legal counsel for the National Iranian American Council, said in a statement Monday that despite the Ninth Circuit’s ruling, “The effects of the Muslim ban remain in place.”
“Visas issued to Iranians have fallen by 52 percent and Iranians are now subjected to months of inter-agency background checks and forced to hand over years of travel history and social media accounts to immigration officials,” he said. “Instead of an overt Muslim Ban, the administration is carrying out a backdoor ban away from the spotlight. The impact remains the same: The unconstitutional ban is alive and well.”
Modarres noted the Ninth Circuit didn’t address the Trump administration’s so-called “extreme vetting” procedures.
“Lawsuits alone cannot dismantle this multi-layered Muslim ban, and now is the time for congressional intervention to finally defeat it and any backdoor bans once and for all,” he said.