President Trump’s power was at its weakest point, constitutionally, when he imposed the latest version of a ban on immigration from Muslim-majority nations, a federal appeals court ruled on Friday. The Supreme Court, where the controversy is headed again, has never reached a final decision on the issue – but it has allowed his latest version to go into effect temporarily.
The U.S. Court of Appeals for the Ninth Circuit, the only federal court at any level to examine all three of the Trump immigration orders, has now found all three legally flawed. Another appeals court, the U.S. Court of Appeals for the Fourth Circuit, which once before had ruled against the President, is expected to issue a new decision soon.
At issue in the courts now is the most sweeping of the three executive orders that Trump has signed since January: it imposed a permanent ban on entry into the U.S. by some 150 million foreign nationals from six countries, with entry possible only on a person-by-person basis when individuals are found eligible for visas.
The three-judge panel of the Ninth Circuit Court, acting on an order from the Supreme Court to move swiftly, produced a 71-page ruling 16 days after holding a hearing on the third version. It declared that the order should not be allowed to operate, but it said it could not put that conclusion into actual effect immediately because of the Supreme Court’s temporary order on December 4 saying that full enforcement of the restrictions could begin.
The unanimous opinion of the three judges was filled, end to end, with strongly worded critiques of the executive order the President signed on September 24. It ruled that the challengers of that version were likely to be able to prove, at a full-scale trial, that this version contradicted immigration laws passed by Congress in four different ways.
But, this time, the Ninth Circuit Court added a stern constitutional lecture to its finding of flaws: when the President uses his power as the nation’s Chief Executive in the face of contrary laws passed by Congress, that power “is at its lowest ebb,” the panel said, quoting from a 1952 opinion by a Supreme Court Justice when the highest court nullified President Harry Truman’s seizure of the nation’s steel mills during the Korean war, to keep them operating despite a labor union strike.
Of all of the legal findings made by the federal courts as they reviewed the President’s efforts to curb immigration, efforts he has been making since one week after he took office in January, none matched the constitutional intensity of Friday’s ruling.
None of the individual trial judges or appeals courts that have examined any of the Trump immigration restrictions has made that broad constitutional declaration before. In a prior decision by the Fourth Circuit Court, those judges ruled that the second Trump executive order probably was an unconstitutional form of religious discrimination, because it targeted only the people of countries with Muslim majorities.
The Ninth Circuit Court, as it has done previously, declined to rule on the religious bias claim made by the challengers. It did not need to reach that question, it said, because of its ruling that the third version probably will be ruled invalid under immigration statutes. Its constitutional declaration about presidential power was added to those four apparent violations of specific statutes.
Congress, the panel wrote, is given the primary authority to control U.S. immigration policy and, while it has given presidents wide discretion to curb entry by foreign panels, but that power is not unlimited and President Trump appears to have far exceeded those limits.
The panel appeared to be deeply disturbed by the claims that the President’s lawyers had made in defending the latest order – that is, that “the President, at any time and under any circumstances, could bar entry of all aliens from any country” and that “no federal court – not a federal district court, nor our court of appeals, nor even the Supreme Court itself – would have Article III jurisdiction” based on the breadth of the claim to White House power.
Since Congress has never voted to strip the courts of their authority to review presidential orders banning foreign entrants, the opinion commented, “we doubt whether the government’s position could be adopted without running roughshod over the principles of separation of powers enshrined in our Constitution.”
In making their broadest arguments in favor of the third executive order, Administration lawyers have relied upon several Supreme Court precedents regarding federal power over immigration. But the Ninth Circuit Court found that none of those prior rulings would sustain what President Trump had in the latest immigration restrictions.
The ruling came in a case from Hawaii, in which U.S. District Judge Derrick K. Watson had imposed a flat ban on any enforcement of the latest presidential order – at least as that order applied to six Muslim-majority nations: Chad, Iran, Libya, Somalia, Syria and Yemen. (The third version also applied to North Korea and to a number of government officials of Venezuela, but those are not Muslim nations so the challengers did not contest the presidential action as to them, and the Ninth Circuit did not act on that.)
The Circuit Court panel did narrow the scope of the order that Judge Watson had issued against the latest entry restrictions. While he would not have allowed the exclusion of any individuals from the six nations based only on their country of origin, the Ninth Circuit Court said that the order could not be enforced only as it would apply to a foreign national who has no close family in the U.S. or has ties to a U.S. organization.
In concluding that the President had probably failed to obey immigration laws passed by Congress, the Ninth Circuit Court concluded that Trump appeared to have (1) exceeded powers given by Congress to bar entry into the U.S. of foreign nationals, (2) failed to make the specific finding imposed by Congress that the foreign nationals being kept out would harm United States interests, (3) violated a congressionally-imposed bar based of the nationality of those excluded, and (4) lacked the authority under his own Executive powers to impose the curbs without explicit power given by Congress.
“The Executive,” the panel remarked, “cannot without assent of Congress supplant its statutory scheme [for immigration] with one stroke of a presidential pen.”
Although President Trump has claimed, as to each of the versions of his immigration curbs, that they were necessary to help ensure that terrorists do not enter this country, the panel rejected that claim as it had before. It commented this time the “national security is not a talismanic incantation that, once invoked, can support any and all executive power” in applying the authority that Congress has assigned to the presidency.
It was in discussing the fourth point on immigration authority – that is, the lack of presidential power to bar entry without congressional permission – that the Ninth Circuit Court panel made its remarks about the weakness of the power that Trump had exercised.
In concluding that section of its opinion, the panel wrote that “the President lacks independent constitutional authority to issue the [third version], as control over the entry of aliens is a power within the exclusive province of Congress.
The panel even found support for Congress’s powers in this field in the Declaration of Independence, which separated America from Britain in 1776. It was one of the colonists’ grievances against the king of England, George III, that he had refused to allow foreign nationals to enter the colonies, the panel noted.
The Administration has the authority to ask the full bench of the Ninth Circuit Court to reconsider the case, or to go next to the Supreme Court. A move on to the Justices appears to be more likely.
When the Fourth Circuit Court issues its ruling on the third Trump version, in a case from Maryland, that decision will be by the full 15-judge bench of that tribunal. It was the full bench that ruled against the President on the second version.
The Fourth Circuit judges heard the Maryland case two days after the Ninth Circuit panel had heard the Hawaii case. The Fourth Circuit Court, too, is under the Supreme Court order to decide the case with dispatch.
Because the Justices in their December 4 temporarily allowing enforcement in full of the third version, the only issue that would be presented to the Supreme Court, in either the Hawaii case or the one from Maryland, would be the likely legality or illegality of this latest version.
Legendary journalist Lyle 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.
