Ninth Circuit Hears Oral Argument in National Security Proclamation Case

Yesterday afternoon, the Ninth Circuit Court of Appeals heard oral argument concerning a Hawaii federal court’s injunction blocking the full implementation of President Trump’s National Security Proclamation to begin enhanced vetting procedures of foreign nationals seeking entry into the United States. Prior to the oral argument, the Ninth Circuit limited the scope of the injunction, and earlier this week the Supreme Court put a halt to the injunction and allowed the Proclamation to go into effect while the appellate process plays out.

The Proclamation, issued in late September, fulfilled the promise of President Trump’s March 6, 2017 National Security Executive Order. The March 6th Order, among other things, called for a global review by the Secretary of Homeland Security of nearly 200 countries to determine whether they provide sufficient information about their nationals seeking entry into our country. The Secretary was to report the findings to the President. During the review, there was supposed to be a 90-day suspension of entry into this country of nationals from six countries with terrorism concerns (Iran, Libya, Somalia, Sudan, Syria, and Yemen).

As a result of the global review, the Acting Secretary of Homeland Security informed the President that eight countries (Chad, Iran, Syria, Libya, Somalia, North Korea, Venezuela, and Yemen) did not satisfy the security criteria. After review and consultation within the Executive Branch, the President issued the Proclamation, imposing immigration restrictions on nationals from those countries until they comply with the necessary criteria.

The Hawaii judge, however, determined in part that the President did not provide sufficient findings to support the Proclamation. Remarkably, the judge reached this conclusion despite the President’s broad constitutional and statutory authority to suspend or restrict the entry of aliens when he determines it is in our country’s best interest, especially, when, as here, the President based that determination on extensive evidence gathered during a global review.

During the oral argument, the Ninth Circuit judges focused their questions on the scope of the President’s authority over immigration matters and the extent to which federal courts can review those decisions. The government attorney emphasized that the findings supporting the Proclamation are legally sufficient.

The three Ninth Circuit judges that heard the oral argument are the same judges who upheld, in part, the Hawaii judge’s earlier injunction against the National Security Executive Order. That case was later dismissed by the Supreme Court as moot after the terms of the Executive Order expired.

The Ninth Circuit is considering the appeal of the Hawaii court’s injunction against the Proclamation on an expedited basis and a decision is expected soon.

The Ninth Circuit’s oral argument is the first of two oral arguments to take place this week with respect to the legality of the Proclamation. The Fourth Circuit Court of Appeals will hear oral argument this Friday regarding a Maryland federal court’s injunction against the Proclamation. That injunction, too, was put on hold by the Supreme Court earlier this week.

In the Fourth Circuit, the ACLJ filed an amicus (friend-of-the-court) brief urging the court to vacate the Maryland judge’s injunction. The brief was filed with the support of the ACLJ’s Committee to Defend Our National Security from Terror, which represents more than 279,000 Americans who have stood in support of the President’s efforts to protect this nation from the entry of foreign terrorists.

We will continue to keep you posted about the litigation concerning the Proclamation, as well as about the other important work of the ACLJ.