The U.S. Court of Appeals for the Ninth Circuit held on June 12, 2017, that President Donald Trump exceeded his statutory authority delegated by Congress in issuing a revised executive order banning travel to the United States from certain countries. In suspending the entry of more than 180 million nationals from six countries, suspending the entry of all refugees, and reducing the cap on the admission of refugees from 110,000 to 50,000 for fiscal year 2017, the President “did not meet the essential precondition” to exercising that authority, the court said: “The President must make a sufficient finding that the entry of these classes of people would be ‘detrimental to the interests of the United States.’ ” Further, the court said, the order “runs afoul of other provisions of the [Immigration and Nationality Act] 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, the court affirmed in large part the district court’s order preliminarily enjoining several sections of the executive order. The court also vacated the portions of the injunction that prevent the government from conducting internal reviews. The court remanded the case to the district court with instructions to reissue an order consistent with the June 12 opinion.
The Trump administration also seeks Supreme Court review of a May 25, 2017, decision by the U.S. Court of Appeals for the Fourth Circuit on the revised travel ban. In that case, the Fourth Circuit ruled against the revised executive order on constitutional grounds, citing the First Amendment’s Establishment Clause against religious discrimination.
The Ninth Circuit’s decision is at http://cdn.ca9.uscourts.gov/datastore/uploads/general/cases_of_interest/17-15589%20per%20curiam%20opinion.pdf. The Fourth Circuit’s decision is at http://coop.ca4.uscourts.gov/171351.P.pdf.