Ninth Circuit gives green light for much larger travel ban

The Ninth Circuit Court of Appeals has issued a new decision on President Donald Trump’s March 6 Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States.”

The court affirmed the portions of the district court injunction that apply to the 90-day, six-country travel ban, but it vacated the portions of the injunction that relate to the government doing an internal review of its vetting procedures, which could lead to a much larger ban based on a different criterion.

The Trump exception

According to University of Chicago law professor Eric Posner, the courts are creating a “Trump exception” to settled law on presidential powers by ignoring the Supreme Court’s admonition in Kleindienst v. Mandel that courts may not “look behind” a “facially legitimate and bona fide reason” when the president exercises immigration authority.

The Ninth Circuit does mention the Supreme Court’s admonition in Mandel, but gives it only cursory attention (see footnote 9 on page 33 of the decision). 

If the Supreme Court does not intervene, Trump may be faced ultimately with the constitutional crisis of not being able to meet his national security responsibilities as the chief of the executive branch with respect to terrorism coming from Muslim countries, unless he defies the orders of the judicial branch. 

Tip of the iceberg

The six-country travel ban is just the tip of the iceberg. The internal reviews the court has given approval to can lead to far more serious consequences.  

Section 2(a) of the executive order reads as follows:

“The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall conduct a worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public-safety threat.”

Section 2(d) directs the secretary of state to ask all foreign governments that do not supply this information already to begin providing it. The consequences of refusing to cooperate are explained in section 2(e): 

“After the period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, shall submit to the President a list of countries recommended for inclusion in a Presidential proclamation that would prohibit the entry of appropriate categories of foreign nationals of countries that have not provided the information requested until they do so or until the Secretary of Homeland Security certifies that the country has an adequate plan to do so, or has adequately shared information through other means.” 

Ironically, the six travel ban countries that are protected by the injunction will be subject to the new ban if their governments refuse to provide the information needed to determine whether individuals from their countries are a security or public-safety threat. On the other hand, if these governments agree to cooperate, their nationals will not be subject to the new ban. 

The order to implement this program will be far less vulnerable to court interference 

I predict the following improvements in the executive order for the new ban:

• It will not apply just to predominantly Muslim countries.
• The original travel ban order was hastily issued one week after Trump’s inauguration without an interagency review. The new one will be based on a worldwide review by the secretary of homeland security in consultation with the secretary of state and the director of national intelligence.
• It will depend entirely on the cooperativeness of the government of the alien’s country. It only will ban aliens from countries with governments that refuse to cooperate, and the ban will be lifted if and when these governments agree to cooperate. 
• It will not apply categorically to every alien from a country with an uncooperative government. It only will ban appropriate categories of aliens from those countries. 
• To prevent more ad hominem attacks on his character and endless references to his campaign statements, Trump will accept the recommendations of his agency heads and let them implement the ban without further input from the White House.

Where this is headed

Unlike the travel ban, which, notwithstanding pessimistic claims to the contrary, is just a 90-day suspension, the new ban will apply to uncooperative governments until they agree to cooperate, which in some cases will never happen. What’s more, it almost certainly will apply to more than six countries. According to DHS Secretary John Kelley, in addition to the six countries on the travel ban list, 13 or 14 other countries also have very questionable vetting procedures.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.

The views expressed by contributors are their own and not the views of The Hill.