Ninth Circuit Stays Its Ruling Against National Security Proclamation

By 

Edward White

|

December 27, 2017

Late last week, the Ninth Circuit Court of Appeals upheld a Hawaii federal court’s injunction blocking the implementation of President Trump’s National Security Proclamation . The Proclamation is designed to begin enhanced vetting procedures of foreign nationals seeking entry into the United States. The Ninth Circuit, however, narrowed the scope of the injunction. Under the Ninth Circuit’s ruling, the Proclamation only applies to foreign nationals without a credible, good faith relationship with a person or entity in the United States. Yet, because the Supreme Court earlier this month halted the Hawaii injunction in full pending the Court’s final review of the matter, the Ninth Circuit stayed the impact of its decision. Consequently, the Ninth Circuit’s decision does not prevent the Proclamation from going into full effect despite the narrowing of the injunction by the circuit court. 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 Ninth Circuit determined in part that the President did not provide sufficient findings to support the Proclamation. The Ninth Circuit’s ruling runs contrary to 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. This Presidential power is properly exercised when, as here, the President based that determination on extensive evidence gathered during a global review. The Ninth Circuit did not address whether the Proclamation violates the Establishment Clause of the First Amendment to the Constitution, as claimed by the plaintiffs. The same three Ninth Circuit judges who upheld the Hawaii injunction against the Proclamation also 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’s ruling will no doubt be appealed by the government to the Supreme Court for a final determination about the legality of the Proclamation. We are still awaiting a decision from the Fourth Circuit Court of Appeals regarding a Maryland federal court’s injunction against the Proclamation. The Fourth Circuit heard oral argument in that case earlier this month. 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.