Declaring that government policy on immigration “is not a one-person show,” a federal appeals court on Monday upheld all of the key parts of a federal judge’s order barring enforcement of President Trump’s new limits on immigration. It said the president had exceeded the authority that Congress had given him to limit entry of foreign nationals into the U.S. It did not rule on a separate claim by challengers that the executive order is unconstitutional.
This is the second time a federal appeals court has ruled against the President on the issue, but this was significantly broader than the decision of that other tribunal, leaving the White House without authority to put into effect either of the two main parts of the executive order.
The new ruling intensified the dispute as it was just beginning to unfold in the Supreme Court. Administration lawyers are expected to act promptly to contest the new decision by the U.S. Court of Appeals for the Ninth Circuit just as they did this month following the narrower ruling by the U.S. Court of Appeals for the Fourth Circuit.
The latest decision came in a case from Hawaii, where a federal judge issued a nationwide order against enforcing either the 90-day suspension of entry of foreign nationals from six Mideast nations or the 120-day suspension of entry of refugees from anywhere in the world.
Already pending at the Supreme Court is a government appeal of an order issued by a federal judge in Maryland. That order blocked only the suspension of entry by foreign nationals from the designated Mideast nations, each of which has a predominantly Muslim population. The Fourth Circuit Court upheld that order.
The Justices may act as early as this week on Administration requests to allow immediate enforcement of both of those provisions, and to grant review of the legality of those provisions. If the court were to agree to rule on the validity of the executive order itself, it has the option of doing that in the remaining weeks of the current term, or wait until its next term, starting in October.
Earlier in the day Monday, the state of Hawaii, the challenger in the case that the Ninth Circuit Court has just decided, urged the Justices to bypass review and not to allow enforcement of the presidential order, but argued that, if the court opts to review the controversy, it should make its decision on both cases before recessing for the summer, either later this month or early in July. The Administration had asked for expedited review of the order's legality, but did not ask that such a ruling come in the current term's closing weeks.
It would take the votes of five Justices to allow immediate enforcement, but the votes of only four to grant review of the dispute.
Hawaii became the first of the challengers of the Trump order to file its views on the controversy at the Supreme Court on Monday – the day the Justices had set for filimg the other side's positions on how the court should proceed with the enforcement and review questions.
The state’s lawyers contended that there was no way that President Trump’s order would be upheld by the Justices, arguing that it was both an unconstitutional form of discrimination against Muslims based on their religion, and it exceeded presidential power under federal immigration laws. Later in the day, lawy.ers for the challengers in the Fourth Circuit Court case—several refugee assistance organizations—filed their replies to the government, also arguing that the Justces should bypass the controversy by denying review and by refusing to allow enforcement of the 90-day suspension of Mideastern peoples. Among other arguments, that filing said that the 90-day suspension, by its own terms, is set to expire on Wedneday of this week, so there would be nothing left to review by the time the court could take up the case.
In the Fourth Circuit Couret case already pending at the court, a majority of that tribunal barred the Trump order based on the religious bias challenge, and did not rule on the federal immigration laws challenges. In the ruling issued Monday afternoon by the Ninth Circuit Court, it did just the opposite – ruling against the president on the basis of immigration statutes, not the Constitution’s First Amendment ban on religious discrimination.
The Ninth Circuit Court ruling, by a three-judge panel, directly rejected the White House claim that the order was designed to protect national security, and that Congress had given the president sweeping authority to exclude foreign nationals whenever he considered them to be a threat to U.S. interests. The panel, in an unsigned 86-page opinion, declared that the Administration had failed to show that suspending the entry of 180 million foreign nationals, based only on the nation from which they would come, would be harmful to the U.S.
The Justices have a private conference scheduled for Thursday morning. Depending upon how quickly lawyers for the government and the challengers submit new filings on the new Ninth Circuit Court’s decision and any remaining filings in the Fourth Circuit case, the immigration controversy could be taken up at the Thursday discussion, or at a special conference centering only on that dispute.
Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.