ADEA Washington Update

Judicial Watch: President Exceeds Authority With Travel Ban

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SCOTUSFrontOn Dec. 22, the United States Court of Appeals for the Ninth Circuit (Ninth Circuit) affirmed a district court’s finding that President Trump exceeded his authority in issuing a ban on entry into the U.S. of certain foreign nationals.

The Ninth Circuit limited the scope of the district court’s preliminary injunction to affected individuals “with a credible bona fide relationship with the United States.”

In their 77-page opinion, the Ninth Circuit judges found that while the President has broad powers to regulate the entry of immigrants, those powers are not without limits. The administration is tightly bound by the Immigration and Nationality Act, which prohibits nationality-based discrimination in the issuance of immigrant visas. Unlike President Trump’s first two travel bans, which only concerned the denial of entry into the U.S., his most recent travel ban effectively bars nationals of six Muslim-majority countries from receiving immigrant visas.

Without seeking to limit the administration’s power to regulate immigration, nor support the ban’s opponents, the judges stated that, “Principles of separation of powers further compel our conclusion that the [travel ban] exceeds the scope of authority delegated to the President under §1182(f),” the section of the U.S. legal code covering “inadmissible aliens.”

The ruling cites an earlier Supreme Court opinion that the separation must be observed “even when the executive actions respond to ... issues that potentially place the country’s ‘Constitution and its survival in peril’” because “‘[c]oncentration of power in the hands of a single branch is a threat to liberty.’”

The Circuit Court noted that its ruling would be put on hold pending a final decision by the U.S. Supreme Court this spring on the latest version of the travel ban.

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