President Trump's third attempt at implementing his travel ban — issued via a September proclamation — again violates federal law, a panel of the US Court of Appeals for the 9th Circuit ruled on Friday.
The court, however, will keep Friday's ruling on hold pending the outcome of any Supreme Court review sought by the Justice Department.
The 9th Circuit ruled in a lengthy decision that "the Proclamation’s indefinite entry suspensions constitute nationality discrimination in the issuance of immigrant visas," a ruling the panel concluded shows the challengers — including the state of Hawaii — had shown a likelihood that they would succeed in their lawsuit.
The court, which heard arguments earlier this month, narrowed the district court's prior injunction — which barred all enforcement of the travel ban against people from the six majority Muslim nations affected — to people from those six nations with "a credible bona fide relationship with the United States."
Those affected are people from Chad, Iran, Libya, Somalia, Syria, and Yemen. Although North Korea and Venezuela also are included in the president's latest proclamation, the district court injunction did not halt enforcement of the ban against those from those countries, so they are not at issue in Friday's decision.
Because the underlying injunction itself is stayed pending the outcome of any petition for certiorari — under a prior Supreme Court order — the 9th Circuit likewise ruled that its Friday decision will remain stayed "pending Supreme Court review."
The case, as with other prior iterations of the ban, was considered before Judges Michael Daly Hawkins, Ronald Gould, and Richard Paez. The opinion was issued per curiam, or for the court, and not under the name of a specific judge.
In issuing their decision, the court ruled solely on the basis that Trump's order violated the Immigration and Nationality Act's nondiscrimination provision — and that the president "lacks independent constitutional authority to issue the Proclamation" under current circumstances.
Because it ruled on the statutory issue, the panel also held that "we need not and do not consider th[e] alternate constitutional" argument made by the challengers that the ban violates the Establishment Clause as a type of religion-based discrimination.
That issue — and Trump's tweets on the topic — were front and center in the other appellate arguments held on the third attempt at the travel ban. The US Court of Appeals for the 4th Circuit heard its arguments en banc, or before the full court, two days after the 9th Circuit's arguments. The 4th Circuit is yet to issue its decision.
Friday's opinion was not issued without a hitch. A little more than an hour after the 9th Circuit's press office sent out the decision, the court sent a follow-up notice that the first opinion had been withdrawn and replaced. The ultimate resolution did not change, although there were slight changes made throughout the opinion.
It was not immediately clear all of the distinctions, but the first paragraph of the opinion, for example, was changed from stating that that court was addressing Trump's effort to bar "over 150 million nationals of six Muslim-majority countries" to "over 150 million nationals of six designated countries."
Chris Geidner is a Supreme Court correspondent for BuzzFeed News and is based in Washington, DC.
Contact Chris Geidner at firstname.lastname@example.org.
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