Ninth Circuit and the Immigration Order: One Thing MissingWilliam Watkins • Thursday February 9, 2017 7:03 PM PDT •
The Ninth Circuit Court of Appeals has refused to reinstate the travel ban imposed by President Trump. The New York Times has this story on the litigation, and the Court’s opinion can be found here. The case is likely headed to the Supreme Court. Of course, if he’s not hankering for a fight, President Trump could simply rewrite the order and accomplish much of what he wanted. It seems that the order covers noncitizens outside the United States, noncitizens already here, and Legal Permanent Residents. If Trump rewrote the order so that it applies only to noncitizens outside the United States, who by law have no due process rights, then a court would likely have no choice but to uphold it.
Notably absent from the Court’s decision is any discussion of 8 U.S.C. 1182(f). This statute is a part of the Immigration and Nationality Act. It provides, in pertinent part,
Whenever 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.
One can easily dislike or disagree with this statute for giving a president too much power; however, it is on the books and seems to clearly govern Mr. Trump’s travel ban. Yet, there is no discussion of this in the Court’s opinion. This is sloppy on the part of the Ninth Circuit. If the matter does reach the Supreme Court, hopefully the Justices will address the congressional statute that actually governs the heart of the issue.