The Ninth Circuit Court of Appeals has upheld the Temporary Restraining Order (TRO) issued by Federal District Judge James Robart against Pres. Trump's Jan. 27 executive order. While the Ninth Circuit's job in this ruling was simply to decide whether the executive order was lawful and constitutional, it essentially ignored that question and based its decision on politics.
In its 29-page ruling, the Ninth Circuit sided with Washington's and Minnesota's claims that the order would harm foreign students, university professors, and businesses hiring foreign workers. The court overruled the president's constitutional authority over national security.
The Ninth Circuit's ruling is particularly troubling, since it purports to overturn decades of settled law supporting the president's broad authority over both foreign policy and national security decisions. It also directly conflicts with the clear language of immigration law (8 U.S.C. 1182(f)), which delegates to the president the power to exclude any class of aliens whose entry he deems is not in the national interest. If sustained, this ruling would override the Constitution by making the Judicial branch, rather than the Legislative or Executive branches, the arbiter of both immigration and national security policy.
The TRO, however, does not impact Pres. Trump's actions that:
- Cap the refugee resettlement program at 50,000 for the fiscal year;
- Call for the expedited implementation of the biometric entry/exit system; and
- Review current procedures and implement universal procedures for extreme vetting of future admissions.
The TRO is restricted to the executive order's immigration and refugee pauses and the prioritization of religious minorities through the refugee resettlement program.
Moving forward, the Trump administration has several options, including petitioning for an en banc review (a larger panel of judges from the Ninth Circuit would review the case), appealing the decision to the Supreme Court, or returning to the district court for a ruling on the merits. The president also could decide to rescind the executive order and reissue a modified order.
Based on Pres. Trump's tweet shortly after the decision went public that read "SEE YOU IN COURT!", it's unlikely that the administration will drop the matter.
CHRIS CHMIELENSKI is the Director of Content & Activism for NumbersUSA
