Month: February 2017

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In a news conference held Thursday, President Trump announced that rather than continue fighting for the reinstatement of his controversial executive order on visas and refugees, he will instead start from scratch and issue an entirely new executive order on the matter. President Trump expects to release the new order next week.

In its supplemental brief to the Ninth Circuit filed Thursday, the Justice Department confirmed Trump’s announcement, stating that “[r]ather than continuing this litigation, the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order to eliminate what the panel erroneously thought were constitutional concerns.” The Department filed that brief in response to Chief Judge Thomas’s call for a vote considering whether the three-judge panel’s ruling blocking Trump’s original travel ban should be reviewed by the full Court. The Department further stated that though the injunction “readily meets the normal standards for rehearing,” the government “respectfully submits that the most appropriate course would be for the Court to hold its consideration of the [pending] case until the President issues the new Order and then vacate the panel’s preliminary decision.”

Both the President and the Department of Justice have stated that the new executive order will obviate the constitutional concerns articulated by the Ninth Circuit in its appraisal of the original order, though the Executive’s maintains that the Court’s ruling was “seriously flawed.” Whether the legal battles over the President’s immigration reform are over however, largely depends on the contents of his new order.


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The 9th Circuit Refuses to Reinstate President Trump’s Travel Ban

The 9th Circuit Court of Appeals on Thursday upheld a lower court’s stay blocking enforcement of President Trump’s ban on admitting travelers from seven predominantly-Muslim countries: Iraq, Iran, Syria, Sudan, Somalia, Libya and Yemen. The court’s decision means that the Trump administration will likely choose to either appeal the decision to the Supreme Court, or attempt to issue a new Executive Order that complies with the constitution. 

Due Process Violations

The court based its ruling largely on the Executive Order’s due process violations, namely a lack of notice and hearing prior to restricting an individual’s ability to travel. Although the government argued that the travel ban mostly impacts individuals who have no protection under the Constitution’s Due Process Clause, the 9th Circuit disagreed. Citing the Supreme Court’s decision in the 2001 case Zadvydas v. Davis, the court reminded the government that the protections of the Fifth Amendment’s Due Process Clause apply not only to citizens, but to all persons within the United States, “regardless of whether their presence here is lawful, unlawful, temporary, or permanent.” The 9th Circuit stated that restricting the ability of lawful permanent residents and temporary visitors to travel and return is likely an impermissible violation of the people’s due process rights.   


The government initially argued that the President’s actions in the field of immigration are unreviewable by the courts when motivated by national security concerns, even when the actions may violate constitutional rights and protects. While recognizing the deference that courts have historically given to the political branches in matters of immigration and national security, the 9th Circuit stated in its decision that this assertion lacks precedent and “runs contrary to the fundamental structure of our constitutional democracy.” 

Government Interest  

In weighing the government and public interests and the potential injury to those affected by the Travel Ban, the court found that the government failed to provide any evidence that persons from any of the seven countries named in the Executive Order had perpetrated a terrorist attack in the United States. Additionally, the court pointed to the strong public interest in the free flow of travel, preventing the separation of families, and protecting the people’s freedom from discrimination, which in this case would likely outweigh the government interest in banning travel from these countries.