Federal appeals court in SF deals Trump another travel ban defeat

People protest outside as the 9th US Circuit Court of Appeals prepares to hear arguments on US President Donald Trump's revised travel ban in Seattle, Washington on May 15, 2017. / AFP PHOTO / Jason RedmondJASON REDMOND/AFP/Getty Images less People protest outside as the 9th US Circuit Court of Appeals prepares to hear arguments on US President Donald Trump's revised travel ban in Seattle, Washington on May 15, 2017. / AFP PHOTO / Jason ... more Photo: JASON REDMOND, AFP/Getty Images Photo: JASON REDMOND, AFP/Getty Images Image 1 of / 14 Caption Close Federal appeals court in SF deals Trump another travel ban defeat 1 / 14 Back to Gallery

The second federal appeals court to consider President Trump’s travel ban against selected mostly Muslim nations reached the same result as the first — that the ban cannot take effect — but for reasons that struck at the heart of Trump’s national-security argument and could lessen his chances of prevailing in the U.S. Supreme Court.

In a 3-0 ruling Monday, the Ninth U.S. Circuit Court of Appeals in San Francisco said the president had offered no evidence that temporarily barring immigrants and visitors from the targeted nations, as well as all would-be refugees, would protect the United States from terrorism.

Another federal appeals court, in Richmond, Va., had already forbidden implementation of the travel ban by ruling May 24 that his executive order was intended to exclude Muslims, in violation of the Constitution.

That decision, which the Trump administration has appealed to the Supreme Court, was based on assorted evidence of the president’s motives — the nations he targeted, his call as a presidential candidate to prohibit Muslim immigration, and post-inauguration statements by Trump and his aides indicating he was carrying out his previous goals.

Monday’s ruling, by contrast, relies on laws passed by Congress and what the court concluded was the president’s failure to abide by them.

“It’s a smart approach,” and one more likely to attract support from Republican-appointed Supreme Court justices such as Anthony Kennedy, Chief Justice John Roberts and Trump appointee Neil Gorsuch, said David Levine, a law professor at UC Hastings in San Francisco.

Trump’s March 6 executive order, a revision of an earlier version, would impose a 90-day ban on U.S. admission of immigrants or visitors who were citizens of any of six nations — Iran, Libya, Somalia, Sudan, Syria and Yemen — whose Muslim populations range from 90 to 99 percent.

The second order, like the first — issued by Trump Jan. 27 and blocked by federal courts a week later — would also impose a 120-day ban on all U.S. admission of refugees fleeing violence and hardship in their homelands, and would reduce total U.S. refugee admissions from 110,000 to 50,000 for the fiscal year that ends Sept. 30.

The revised version would exempt anyone holding a U.S. visa and would allow consular officers to issue individual exemptions in hardship cases. U.S. consulates revoked between 60,000 and 100,000 visas of would-be entrants under Trump’s first order.

The Justice Department contends the ban is based on terrorism concerns, not religion, and would give the administration time to devise tougher screening standards for entrants from zones of conflict. They noted that federal law gives the president broad authority over immigration and national security.

But the Ninth Circuit said Trump’s executive order described the six nations as sources of terrorism, yet offered no evidence that any citizens of those nations, let alone all of them, pose a threat to national security.

The order would thus violate two federal immigration laws, the court said: a 1952 law allowing the president to exclude any “class of aliens” by showing that they were “detrimental” to the United States, and a 1965 statute that prohibited discrimination in immigration based on national origin. Because Trump’s actions appear to be illegal, the court said, there is no need to decide whether they would also be unconstitutional.

That could also undercut the Trump administration’s leading argument against previous rulings, including the May 24 ruling by the Richmond court: that judges were wrongly using the president’s campaign statements about barring Muslim immigration to “psychoanalyze” the motives of his executive order, rather than properly relying on the language of the order itself.

“We’re starting to get a partisan split, Republican-appointed judges saying you can’t pay any attention to campaign rhetoric and tweets, and Democrats going the other way,” said Levine, of UC Hastings. “The Ninth Circuit avoids that by saying we’re deferring to Congress, that Congress requires findings and the executive order does not make the requisite findings.”

Bill Ong Hing, a University of San Francisco law professor and director of the school’s Immigration Law and Deportation Defense Clinic, said the Ninth Circuit’s reliance on federal laws is more likely to persuade Supreme Court justices than citing campaign comments as evidence of a discriminatory intent.

“I’ve always thought that statutory grounds was stronger from the plaintiffs’ perspective ... (that) he’s going beyond the statute by saying everyone from those countries presents a danger,” Hing said. “He doesn’t have a factual basis for that conclusion.”

The ruling is “very pragmatic” and, because it is based on statutes, would allow Congress and the president to address the court’s concerns by changing the law, said Carl Tobias, a University of Richmond law professor.

Stanford Law Professor Michael McConnell had a different view.

“The most shocking thing about the panel opinion is that it presumes the authority of courts to second-guess the president on a foreign affairs issue vested in him alone,” said McConnell, director of Stanford’s Constitutional Law Center. He predicted a Supreme Court reversal.

Attorney General Jeff Sessions also took issue with the ruling.

“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 ruling was jointly issued by Judges Michael Hawkins, Ronald Gould and Richard Paez, all appointees of Democratic presidents.

They said presidential authority over immigration, though broad, “is not unlimited.”

Trump’s order “makes no finding that nationality alone renders entry of this broad class of individuals a heightened security risk to the United States,” the court said. “It does not provide any link between an individual’s nationality and their propensity to commit terrorism.”

The court said Trump, while asserting that a handful of residents of the six targeted countries had committed acts of terrorism, provided no justification for banning entry, even temporarily, by anyone from those nations.

The panel also cited a report by Trump’s Department of Homeland Security that found no connection between immigrants’ national origins and any likelihood of terrorism after U.S. entry.

And in another instance of Trump’s tweets seemingly backfiring, the court cited his June 5 Twitter posting — “we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!” — as evidence that it was the nations, and not their 180 million-plus residents, that the president considered inherently dangerous.

The White House confirmed on June 6 that Trump’s tweets were “official statements,” the court said.

The Ninth Circuit panel also rejected the Justice Department’s argument that the 1965 federal immigration law, which barred discrimination based on national origin, applied only to issuance of visas and did not prohibit the government from selectively barring entrants from certain nations. The law, properly understood, requires equal treatment, regardless of national origin, for those seeking U.S. entry, the court said.

Trump’s order thus “would enable the president to restore discrimination on the basis of nationality that Congress sought to eliminate,” the court said.

The court also said Trump had provided no justification, based on national security or any other grounds, for a 120-day ban on all refugee admissions or a reduction from 110,000 to 50,000 in overall U.S. refugee admissions for the year.

And the state of Hawaii, lead plaintiff in the case before the court, provided evidence of hardships the state and its residents would suffer — “prolonged separation from family members, constraints to recruiting and attracting student and faculty members to the University of Hawaii, decreased tuition revenue, and the state’s inability to assist in refugee resettlement” — if Trump’s order were enforced, the court said.

On another issue, the court said U.S. District Judge Derrick Watson of Hawaii had gone too far by prohibiting Trump’s administration from working on a plan for “extreme vetting” of immigrants and refugees while the travel ban continued. Ironically, said Levine, that part of the ruling could effectively end the case by giving officials the time they said they needed to devise stricter screening methods.

Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com

Twitter: @egelko

Read the ruling: Find it at http://bit.ly/2sl8V5U