As detailed in our previous alert on this issue, on May 15, 2017, the United States Court of Appeals for the Ninth Circuit heard oral arguments relating to the legality of Sections 2 and 6 of the “Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States” issued on March 6, 2017, (the “new E.O.”).
On June 12, 2017, a three-judge panel of the Ninth Circuit unanimously affirmed the United States District Court for Hawaii’s March 29, 2017, nationwide preliminary injunction as to key provisions of the new E.O. The court analyzed the legality of the new E.O. under the Immigration and Nationality Act of 1965, as opposed to weighing constitutional considerations, which other courts have done. Specifically, the court held that the identified reasons for the travel suspensions under the new E.O. do not support the conclusion that the entry of nationals from the six designated countries would be harmful to national interests. The court concluded that the President, in issuing the new E.O., exceeded the scope of the authority delegated to him by Congress, and noted that “immigration, even for the President, is not a one-person show.” State of Hawaii, et al. v. Trump at p. 2. Notably, the court held that the District of Hawaii erred by enjoining the entirety of Sections 2 and 6 of the new E.O., particularly the portions that pertain to interagency review. Accordingly, the court vacated the portion of the injunction that prevents the United States government from conducting internal reviews. The court also modified the scope of the injunction by lifting it as to the President, concluding that the extraordinary remedy of enjoining the President in the performance of his official duties was not appropriate.
During a June 12, 2017, press briefing, the White House Press Secretary, Sean Spicer, indicated that the administration is reviewing the Ninth Circuit’s decision and expressed continued confidence that the new E.O. is lawful and ultimately will be upheld by the United States Supreme Court.
As noted in our previous alert on this issue, the Fourth Circuit on May 25, 2017, also ruled against the new E.O. On June 1, 2017, the United States Department of Justice filed an emergency request to the United States Supreme Court asking that it reinstate the new E.O. and hear the Government’s appeal of the Fourth Circuit’s ruling against the new E.O. On June 14, 2017, the President issued a Presidential Memorandum in which he clarifies that the effective date of Section 2 and 6 of the new E.O. will be the date and time at which the injunctions are lifted or stayed.