Update: Hawaii v. Trump, 2017 WL 2529640 (9th Circuit)
On June 12, 2017, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, in a unanimous decision, affirmed the Preliminary Injunction order that had been entered by the U.S. District Court for the District of Hawai’i (Hawaii v. Trump, 2017 WL 1011673 (D. Haw. Mar. 15, 2017)) against the second “Muslim travel ban” Executive Order (E.O. 13780). The Court stated that “immigration, even for the President, is not a one-person show. The President’s authority is subject to certain statutory and constitutional restraints. We conclude that the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress…. Further, the Order runs afoul of other provisions of the INA that prohibit nationality-based discrimination and require the President to follow a specific process when setting the annual cap on the admission of refugees. On these statutory bases, we affirm in large part the district court’s order preliminarily enjoining Sections 2 and 6 of the Executive Order.” (Hawaii v. Trump, 2017 WL 2529640 at *1).
The Court elaborated in detail on various statutes which influenced its decision:
8 U.S.C. § 1182(f)
8 U.S.C. § 1182(f) provides that “[w]henever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” The Court held that “this authority is not unlimited… [it] requires that the President’s findings support the conclusion that entry of all nationals from the six designated countries, all refugees, and refugees in excess of 50,000 would be harmful to the national interest. There is no sufficient finding [here]… National security is not a ‘talismanic incantation’ that, once invoked, can support any and all exercise of executive power under § 1182(f)…” Id. at *14-16, citations omitted.
8 U.S.C. § 1152(a)(1)(A)
The Court also reviewed 8 U.S.C. § 1152(a)(1)(A), which states that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” (emphasis added). The Court did not adopt the Government’s argument that permitting entry is separable from issuing a visa. Id. at *18.
8 U.S.C. § 1157
8 U.S.C. § 1157 circumscribes the President’s required actions in setting the number of refugees to be admitted a fiscal year, which include “after appropriate consultation with Congress.” The Court found that no such consultation had occurred. Id. at *21.
8 U.S.C. § 1182(a)(3)(B)
8 U.S.C. § 1182(a)(3)(B) sets forth detailed and specific criteria for determining terrorism-related inadmissibility. The Court held this inapplicable, noting that “executive action should not render superfluous Congress’s requirement that there be a reasonable ground to believe that an alien is likely to engage after entry in any [specifically defined] terrorist activity.” Id at *23, quotation marks omitted.
Vacating Parts of the Preliminary Injunction
The Court vacated the Preliminary Injunction order in two ways. One, it held that the “extraordinary remedy of enjoining the President is not appropriate” in this case and secondly, that the Government may conduct internal reviews in accordance with the E.O. 13780. Id. at *28.