9th Circuit: Trump's 3rd Travel Ban Violates Immigration Act

In State of Hawaii v. Trump, (9th Cir., Dec. 22, 2017), the U.S. 9th Circuit Court of Appeals, agreeing with the district court (see prior posting), concluded that President Trump's third travel ban is inconsistent with the Immigration and Nationality Act, saying in part:

The Proclamation, like its predecessor executive orders, relies on the premise that the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., vests the President with broad powers to regulate the entry of aliens. Those powers, however, are not without limit. We conclude that the President’s issuance of the Proclamation once again exceeds the scope of his delegated authority. The Government’s interpretation of 8 U.S.C. § 1182(f) not only upends the carefully crafted immigration scheme Congress has enacted through the INA, but it deviates from the text of the statute, legislative history, and prior executive practice as well. Further, the President did not satisfy the critical prerequisite Congress attached to his suspension authority: before blocking entry, he must first make a legally sufficient finding that the entry of the specified individuals would be “detrimental to the interests of the United States.” 8 U.S.C. § 1182(f). The Proclamation once again conflicts with the INA’s prohibition on nationality-based discrimination in the issuance of immigrant visas. Lastly, the President is without a separate source of constitutional authority to issue the Proclamation.

The court avoided deciding the question of whether the Proclamation violates the Establishment Clause.  The court also limited the district court's preliminary injunction to foreign nationals who have a bona fide relationship with a person or entity in the United States. Also, as already ordered by the Supreme Court, the 9th Circuit stayed its injunction pending Supreme Court review. Los Angeles Times reports on the decision.