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9th Circuit Takes Issue with Trump’s Assertion Immigration Ban is Not Reviewable

President Donald Trump’s executive order banning immigration from seven mid-east counties will continue to go unenforced as judges on the 9th Circuit Court of Appeals ruled the executive order failed to meet necessary constitutional criteria.

The ruling from Circuit Judges William C. Canby, Richard R. Clifton, and Michelle T. Friedland rejected Trump’s assertion that the court does not have the authority to inhibit the execution of the order, and cited statements made by Trump enumerating his plan to institute a “Muslim ban” as cause to continue to block execution of the president’s order.

In defending the ban, the president claimed he has “unreviewable authority to suspend the admission of any class of aliens,” and the “courts owe substantial deference to the immigration and national security policy determinations of the political branches.” An amicus curiae brief filed by the American Center For Law and Justice in support of the President pointed to the scope of the executive with respect to immigration and national security.

“There can be no doubt that Congress expressly delegated to the President broad discretionary authority,” the brief reads. “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,’ the President has the authority to ‘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.”

However, the 9th circuit judges ruled it is, in fact, justified in blocking the executive order as the judiciary must resolve challenges to the constitutionality authority of the branches of government, according to information in the court’s judgement. Accordingly, “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” they wrote.

Further, the courts accepted the argument from the states of Washington and Minnesota, cited as plaintiffs-appellees in the case, that the Executive Order violates the Establishment and Equal Protection Clauses of the Constitution because it was “intended to disfavor Muslims.”

“In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a ‘Muslim ban’ as well as evidence they claim suggests that the Executive Order was intended to be that ban,” the ruling reads. The court also took issue with the government’s failure to provide constitutionally mandated due process to some travelers, as there was insufficient notice prior to the implementation of individual travel restrictions.

Despite the president’s argument those impacted by the executive order do not have rights to due process or Constitutional protections, the courts contended provisions in the order that deny entry into the U.S. to “certain lawful permanent residents and non-immigrant visaholders without constitutionally sufficient notice and an opportunity to respond” are impermissible.

The courts also ruled part of the order “contravenes” procedures provided by federal stature regarding refugees seeking asylum. It is unclear how the administration will proceed after the ruling. Some experts speculate the president can challenge the issue in the Supreme Court or draft an entirely new order. For his part, Trump took to social media to defend his order and warned of the consequences of stifling its enforcement.

“See you in court, the security of our nation is at stake!” Trump tweeted a little after 6:30 on Thursday, Feb. 9.

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