Here’s the text of the unanimous “per curium” decision by a panel consisting of Circuit Judges Michael Daly Hawkins, Ronald M. Gould, & Richard A. Paez:
And, here’s the related story in the NY Times, reported by Ronald Liptak:
https://www.nytimes.com/2017/06/12/us/politics/trump-travel-ban-court-of-appeals.html
*************************************************
This order was more or less expected by most legal observers. The 9th Circuit did lift the part of the District Court’s injunction preventing the President from directing an internal review of vetting procedures. Also interestingly, the 9th Circuit found that the President’s attempt to “cut” FY 2017 refugee admissions from 110,000 to 50,000 exceeded his authority, to a large extent because he failed to undertake the “advance consultation with Congress” required by the INA.
The Supreme Court presently is deciding whether or not to review a similar case from the Fourth Circuit Court of Appeals upholding the injunction against Travel Ban 2.0.
The Ninth Circuit case is State of Hawaii v. Trump.
PWS
06-12-17
The 9th Circuit decision to keep the Stay on travel ban EO #2 probably increases somewhat the likelihood that the Supreme Court will somehow let the developing consensus against EO #2 grow. unanimously so far. No circuit split, etc.
Look for the vote in granting the initial stay motion from the DOJ, obviously. Assuming the Supremes let the 4th Circuit and now 9th Circuit stays stand, pending SCOTUS substantive review, only a large preliminary vote like granting certiorari or asking for specific discussion on certain constitutional issue may mean Kennedy and Gorsuch want to pontificate, per our previews no Chevron Deference discussion.
The 4th Circuit decision makes a specific factual finding on Trump’s motives and has historical support outside the Immigration Law area. Interestingly, it could be a Korematsu in reverse. Emphasizing the unique factual record publicly created by Trump on both immigration matters and Muslim immigrants specifically, as the exception among Presidents that illustrates the rule as to judicial deference.
A substantive due process SCOTUS determination, one way or the other, looks like a staple for US Constitutional Law lawbooks for at least one generation. Which of today’s “so called” conservative majority wants to be read by every law student arguing that Trump has unbridled power regardless of as clear a record as possible on improper motive? If Alito won’t fit, Trump, you gotta quit.
SCOTUS may even generate a unanimous decision written by Kennedy, like US v Muhammad Ali, despite a close initial vote, eventually became a unanimous decision for Ali.
But that all leaves as an untidy end the fact that we remain closely divided politically on the underlying issue. Is it an “improper motive” for Trump to want to suspend travel from the chosen 6 Muslim countries, where he does not own hotels and other properties to see the light. And the light can be seen from the Trump Hotel at the Old Post Office, 2 blocks from the White House. Anonymous cash tips preferred, but all foreign countries credit cards honored.
Emoluments Clause you say? That sounds like something you take for diarrhea! Seeing it in that light, maybe diarrhea is an apt analogy for Trump’s impeachment!