Ninth Circuit Wrestles With Unblocking Trump’s Travel Ban

by Nicholas Fillmore, Court House News, December 6, 2017

(CN) – A three-judge panel of the Ninth Circuit heard arguments Wednesday on the third version of President Donald Trump’s travel ban, just two days after the Supreme Court allowed the full version of the executive order to take effect pending appellate review.

Unlike its predecessors, the third version seeks to block entry into the United States by citizens from eight nations, six of them predominately Muslim. Restrictions vary, but in most cases travelers from Iran, Libya, Syria, Yemen, Somalia, Chad and North Korea and Venezuela will be barred from working, studying or vacationing here.

Citing U.S. immigration law, Deputy Assistant Attorney General Hashim Mooppan told the Ninth Circuit panel – all President Bill Clinton appointees – that Trump was well within his authority to block U.S. entry from nations that pose a threat to the United States, as President Jimmy Carter did during the Iran hostage crisis in the late 1970s and President Ronald Reagan did with Cuba.

As for the current travel ban, the Trump administration says it acted to protect the Unites States from nations with information-sharing deficiencies that undermine the United States’ vetting process for issuing visas.

But the state of Hawaii and others said Trump’s authority to set immigration policy is constrained by a different provision of immigration law, despite the government’s adoption of the principle of “consular non-reviewability” as a rationale for granting sweeping powers to the president, and its problem with other nations’ information-sharing practices.

“They have not cited the kinds of examples to make these claims,” plaintiffs’ attorney Neal Katyal argued. “They’ve never showed that the visa-vetting process is inadequate, despite a previous finding by this court that the administration must do so.”

Asked by Circuit Judge Richard Paez if he thought the panel’s previous finding was “too tough,” Katyal said it was the president’s intention “to take a wrecking ball to a finely-reticulated 10-point test designed by Congress to vet immigrants, and to put himself in the driver’s seat.”

Circuit Judge Ronald Gould posed a hypothetical in which he asked if courts could step in if a president and his cabinet decided to ban all immigrants from anywhere in the world if they aren’t American citizens. Mooppan told the panel Supreme Court precedent has made that kind of presidential decision-making immune from judicial review.

But Mitchell Reich, also representing the plaintiffs, called Mooppan’s argument “breathtaking.”

“Congress chose to make individual visa decisions unreviewable. It did not choose to make immigration policies unreviewable,” he said.

Katyal meanwhile cited the relevance of the upcoming 76th anniversary of the attack on Pearl Harbor, and the prosecution of Japanese-American citizen Gordon Hirbayashi for violating a race-based, executively ordered curfew in World War II, as not only an assault on U.S. security, but on its most basic commitments.

“The walls of this very courthouse, where Gordon Hirbayashi was tried, bear witness to that tragedy,” Katyal said.

The Ninth Circuit isn’t the only appellate court taking up the travel ban this week: the Virginia-based Fourth Circuit will take up the government’s appeal of a Maryland federal judge’s order partially blocking the ban on Friday. 

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VIDEO: Hawaii vs. Donald Trump At Appeals Court