President Trump's travel ban struck down by second appeals court

Alan Gomez and Richard Wolf | USA TODAY

Show Caption Hide Caption Trump's travel ban hits another roadblock President Trump is going to have to wait longer still to get his proposed travel ban up and running. Josh King has the story (@abridgetoland).

President Trump's effort to restrict travel from six predominantly Muslim countries suffered another in a string of legal setbacks Monday when a second federal appeals court said it discriminated based on nationality and lacked justification based on national security.

The U.S. Court of Appeals for the 9th Circuit based its ruling on federal immigration law rather than the Constitution's religious protections, thereby highlighting several ways the travel ban could be struck down by the Supreme Court, where it's headed next. Most other courts have ruled that the ban discriminates against Muslims.

The panel of three judges, all appointed by President Bill Clinton, also handed the Trump administration an olive branch that could do more harm than good: It overturned one part of a federal district court judge's ruling that the government claimed had blocked a 90-day review of current vetting procedures. That starts the clock on a process which could render the overall case moot in three months, if the Supreme Court has not ruled by then.

Even as the 9th Circuit panel released its 78-page decision, challengers to the travel ban from Hawaii and Maryland submitted their final arguments to the Supreme Court, which could decide two things soon: whether to hear the case now or in the fall, and whether to let the ban go into effect in the meantime.

The challengers' legal briefs came in response to the Justice Department, which has asked that the justices jump-start the ban now. The legal papers cited its impact on Muslims from Iran, Libya, Somalia, Sudan, Syria and Yemen — in part by reciting Trump's own words during the presidential campaign and since. They even cited the president's tweets from last week, in which he called for a tougher ban and said "extreme vetting" had begun.

But the California-based 9th Circuit court sidestepped the issue of whether the ban violates the Constitution's protection from religious discrimination. Rather, the judges said the travel ban discriminates based on travelers' nationality without improving national security.

"The order does not tie these nationals in any way to terrorist organizations within the six designated countries," the panel said. "It does not identify these nationals as contributors to active conflict or as those responsible for insecure country conditions. It does not provide any link between an individual’s nationality and their propensity to commit terrorism or their inherent dangerousness."

Attorney General Jeff Sessions criticized the ruling, as he has done after several other district and appeals court decisions, and vowed to push his Supreme Court appeal.

“President Trump knows that the country he has been elected to lead is threatened daily by terrorists who believe in a radical ideology, and that there are active plots to infiltrate the U.S. immigration system -- just as occurred prior to 9/11," Sessions said in a statement. "The president is committed to protecting the American people and our national security."

Although the Justice Department did not wait for the 9th Circuit's ruling before seeking Supreme Court intervention, the panel's objections under the Immigration and Nationality Act, rather than the First Amendment, are sure to be taken into consideration by the justices. That gives them additional reasons to strike down the travel ban, even if they do not decide that it discriminates against Muslims.

"The court now has opinions below in the full range of statutory and constitutional issues," said Micah Schwartzman, a law professor specializing in religion at the University of Virginia School of Law. "Unless the case is mooted, which remains a possibility, I would expect the court to hear argument on all these issues."

The latest appeals court ruling follows one from the Virginia-based U.S. Court of Appeals for the 4th Circuit, which said last month that revisions to the first, more stringent travel ban did not alter its religious animus. The full court, rather than a three-judge panel, ruled 10-3 that such discrimination violated constitutional protections of religion enshrined in the Establishment Clause of the First Amendment.

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At issue is Trump's proposal to ban most travel from the six affected nations for 90 days, and to suspend the entire refugee program for 120 days. Justice Department lawyers made several adjustments from the first travel ban to address concerns raised by judges across the country. The revised version allowed current visa and green card holders to continue traveling, removed Iraq from the list of targeted countries and deleted a section that gave preference to Christian minorities.

Trump has said the travel ban is needed to give the government time to develop enhanced vetting procedures for people coming from terror-prone countries. Critics have said the orders amount to an unconstitutional "Muslim ban" that Trump called for during his presidential campaign.

The 9th Circuit panel found that the administration had not established enough of a national security rationale "to suspend the entry of more than 180 million people on the basis of nationality. National security is not a 'talismanic incantation' that, once invoked, can support any and all exercise of executive power."

The court also noted that since the September 11 attacks, 12 people have carried out fatal domestic terrorist attacks — "none committed by nationals from the six designated countries."

Trump has insisted the ban is legal and has doubted his own lawyers for bowing to court rulings by issuing a "watered-down" version that still got blocked. In a series of tweets last week, he said the Justice Department should have stuck by the original travel ban and pushed for a "much tougher version." He continued a series of attacks against judges who have ruled against him, tweeting that "courts are slow and political!"