Could President Donald Trump’s anti-Muslim travel ban be struck down without ever mentioning that it’s anti-Muslim? That’s what a panel decision by the U.S. Court of Appeals for the 9th Circuit has tried to do. The court said Monday that Trump’s executive order violated federal immigration law because it operated on the basis of nationality and failed to provide a national security reason — even though the order purported to give one. The decision gave no deference whatsoever to the president’s explanation.
The 9th Circuit approach is high risk. It’s intended to give the U.S. Supreme Court an alternative road map to block the ban without expressly saying that Trump acted on anti-Muslim motives. (The administration, which had already asked the Supreme Court to review its earlier loss in another appeals court, asked Tuesday for time to file new briefs based on the 9th Circuit decision.) The danger is that by resting its holding on a contradiction between two parts of the Immigration and Nationality Act, the court could turn the entire case into an arcane battle over the meaning of the statute, obscuring the moral clarity of the constitutional problem with the executive order.
What makes the 9th Circuit’s decision different from most of the other federal court judgments on the travel ban, in either of its two iterations, is that it ignored the constitutional issue entirely. Rather than saying that the ban was based on unconstitutional animus in violation of religious liberty, the single unsigned opinion by the three-judge court said that Trump lacked legal authority to issue the ban under federal immigration law.
The linchpin of the court’s argument is a provision of the law that says no one should “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.”
The court reasoned that Trump’s order violated this provision by excluding everyone from six majority-Muslim countries, an exclusion based on nationality.
That sounds pretty cut and dried. But the Trump administration has two answers.
One is that the travel ban doesn’t deny “an immigrant visa” but rather denies entry. This is a technical argument that I don’t find especially convincing, and that the 9th Circuit rejected. Yet it’s important to note that it isn’t a crazy argument. The anti-discrimination language was introduced to put an end to the old national quota system for immigrant visas. Arguably, that doesn’t apply to temporary national security bans like the one imposed by Trump.
The Trump administration’s second argument turns on another provision of the law, cited in the executive order. It says the president may suspend entry of “any class of aliens as immigrants or nonimmigrants” whenever he finds that their entry “would be detrimental to the interests of the United States.”
That’s a pretty strong grant of power by Congress to the president, and it’s been the greatest challenge for all the courts that have blocked the ban.
When the president is acting under the authority given to him by Congress, executive power is “at its maximum,” under precedent derived from Justice Robert Jackson’s opinion in the landmark 1952 separation of powers case, Youngstown Sheet & Tube Co. v. Sawyer.
Ordinarily, that would mean that the courts should defer to Trump’s assertion in the executive order that unrestricted entry of nationals from six majority Muslim countries would harm American interests.
Yet the 9th Circuit held that the executive order included “no sufficient finding … that the entry of the excluded classes would be detrimental to the interests of the United States.”
The court explained there had been “no finding that nationality alone renders entry of this broad class of individuals a heightened security risk.”
In other words, the court second-guessed Trump’s assertion that letting in nationals from the six countries would increase the odds of letting in terrorists.
To be sure, I find Trump’s assertion in the order highly doubtful, too. But given the Youngstown precedent, the court is supposed to treat the president’s claim of a national security issue as determinative, or nearly so — because Congress expressly gave the president the authority to make that determination.
The 9th Circuit’s response to this problem was to point to the nondiscrimination provision, which it said Trump’s order violated.
Thus, the court concluded, Trump wasn’t acting pursuant to congressional authority. Rather, he was acting in contradiction to the wishes of Congress. Under the Youngstown framework, that put his power “at its lowest ebb,” not its maximum.
If this chain of reasoning sounds a bit complicated to you, then you’ve grasped the risks inherent in the 9th Circuit’s approach.
In theory, the Supreme Court could adopt the lower court’s reasoning and hold that the ban violates the nondiscrimination part of the immigration law. But if the court doesn’t buy that interpretation of the nondiscrimination provision, it will find itself forced to defer to Trump’s national security finding.
That’s why it’s almost certainly safer for the Supreme Court to focus not on the technicalities of immigration law, but the reality that the executive order is an anti-Muslim ban, enacted with prejudice and bad motive. That would make for a clearer Supreme Court decision — and one that reflects the moral vision that has led so many courts to find the ban unconstitutional.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
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