Ninth Circuit Denounces Donald Trump’s Refugee Orders, Says Not Justified

The far-left U.S. Court of Appeals for the 9th Circuit said Monday that President Donald Trump’s March 9 executive immigration order on refugees is unconstitutionally vague.

The three-judge decision declared that President Trump must justify his policies in court by citing agency recommendations and that he cannot unilaterally curb the annual inflow of refugees from 100,000 to 50,000 even though prior presidents have raised and lowered the annual inflow of refugees without interference from the judges.

“Immigration, even for the President, is not a one-person show,” the judges declared in their 86-page decision, tiled  continuing:

The President’s authority is subject to certain statutory and constitutional restraints. We conclude that the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress. In suspending the entry of more than 180 million nationals from six countries, suspending the entry of all refugees, and reducing the cap on the admission of refugees from 110,000 to 50,000 for the 2017 fiscal year, the President did not meet the essential precondition to exercising his delegated authority: The President must make a sufficient finding that the entry of these classes of people would be “detrimental to the interests of the United States.”

Further, the Order runs afoul of other provisions of the INA that prohibit nationality-based discrimination and require the President to follow a specific process when setting the annual cap on the admission of refugees.

Throughout their decision, the three judges — all of whom were appointed by former President Bill Clinton– insisted that the President needs to justify his immigration decisions, including the March 2017 Executive Order, dubbed “EO2“, by detailing the reasons why migrants or refugees should be excluded despite the impossibility of predicting future behavior based on incomplete records and flexible, hidden personal views. 

The lawsuit is titled “State of Hawaii: Ismail elShikh vs Donald J. Trump. The case was brought by an Egyptian immigrant cleric based in Hawaii, who claimed Trump’s policy could block his old mother-in-law from moving to Hawaii. The claim was supported by the ACLU, Islamist groups, and many elite lawyers. 

The decision by the California judges will either be approved or rejected by the Supreme Court, as soon as the fall.

Much of the executive order was already blocked by another group of progressive judges in Virginia, who claimed that it is unconstitutional because of Trump’s election-campaign criticism of Islam. The California court did not bring up Trump’s campaign comments or claim religious animus, but repeatedly emphasized that Trump needs support from agency reports and the courts before he can rewrite the nation’s immigration policies.

To justify its claim for a greater bureaucratic and judicial role in national immigration policy, the court had to deal with a 1952 law giving the president near-total authority over immigration policy. According to the court:

In the INA of 1952, Congress delegated some of its power to the President through Section 212(f), which provides: 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.

In response, the court argues that: “Section 1182(f) [of the law] requires that the President find that the entry of a class of aliens into the United States would be detrimental to the interests of the United States,” adding:

Section 1182(f) [of the law] requires that the President find that the entry of a class of aliens into the United States would be detrimental to the interests of the United States. This section requres that the President’s findings support the conclusion that entry of all nationals from the six designated countries, all refugees, and refugees in excess of 50,000 would be harmful to the national interest. There is no sufficient finding in EO2 that the entry of the excluded classes would be detrimental to the interests of the United States.

Also, the president has not produced documents from the bureaucracies to back up his decisions, says the court:

There is no finding that present vetting standards are inadequate, and no finding that absent the improved vetting procedures there likely will be harm to our national interests. These identified reasons do not support the conclusion that the entry of nationals from the six designated countries would be harmful to our national interests.

The president has not explained in detail why groups of refugees or individual migrants from the six target nations should be excluded, the court declares.

The Order does not tie these nationals in any way to terrorist organizations within the six designated countries. 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. In short, the Order does not provide a rationale explaining why permitting entry of nationals from the six designated countries under current protocols would be detrimental to the interests of the United States … In conclusion, the Order does not offer a sufficient justification 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 under § 1182(f).

The court also relied on President Barack Obama’s judgment that upping the inflow of refugees to 110,000 a year is safe, saying:

President Obama previously determined that the admission of 110,000 refugees to the United States during fiscal year 2017 was justified by humanitarian concerns or otherwise in the national interest… To the extent that 60,000 additional refugees can be considered a class of aliens, EO2 makes no findings to justify barring entry in excess of 50,000 as detrimental to the interests of the United States. EO2 gives no explanation for why the 50,001st to the 110,000th refugee would be harmful to the national interest, nor does it specify any further threat to national security. And there is not any rationale explaining why the previous target admission of 110,000 refugees this fiscal year was justified by humanitarian concerns or otherwise in the national interest, see 8 U.S.C. § 1157(a)(2), but that the entry of more than 50,000 refugees this same fiscal year would be detrimental to the national interest. Here too, the President did not meet the statutory precondition of exercising his authority under § 1182(f) to cap refugee admissions.

The decision is found here.


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