Ninth Circuit cites Trump tweet in opinion blocking travel ban

Liz Goodwin
Senior National Affairs Reporter

WASHINGTON — A federal court cited President Trump’s recent tweet on his travel ban in its opinion blocking the executive order from going into effect Monday. The court further pointed to press secretary Sean Spicer’s admission that tweets are official presidential statements.

The Ninth Circuit Court of Appeals upheld a lower court’s decision that Trump overstepped his authority in temporarily banning nationals of six countries — Iran, Libya, Sudan, Somalia, Syria and Yemen — and all refugees from entering the United States in his March executive order.

(Yahoo News photo Illustration; photos: AP, Twitter)

The judges argued that Trump did not adequately make the case that the United States would be harmed if his travel ban were not in place — a legal requirement for his executive order. They also decided that the president’s executive order violated a 1965 immigration law preventing the government from excluding immigrants based solely on their nationality.

The judges indicated that Trump’s executive order would bar someone who left Syria as a child decades ago from traveling to the United States, but not someone who was born elsewhere but immigrated to Syria at the start of its civil war. They said this was evidence that nationality is not an effective screen for national security concerns. The judges said Trump did not provide a link between nationals of the six countries and terrorism or conflict.

“Indeed, the President recently confirmed his assessment that it is the ‘countries’ that are inherently dangerous, rather than the 180 million individual nationals of those countries who are barred from entry under the President’s travel ban,” the judges wrote in a footnote. “See Donald J. Trump (@realDonaldTrump)”

The court then embedded a link to Trump’s tweet.

The judges also pointed out a CNN article quoting Spicer saying Trump’s tweets are “official statements.”

The law “requires that the President exercise his authority only after meeting the precondition of finding that entry of an alien or class of aliens would be detrimental to the interests of the United States,” the justices write. “Here, the President has not done so.”

Some court watchers have suspected that Trump’s recent barrage of tweets calling his executive order a “travel ban” and bemoaning that he had to sign a “watered down” version of his original January executive order could come back to haunt him as the case makes its way to the Supreme Court. (The Supreme Court will decide as soon as Tuesday whether to uphold or strike down two federal court injunctions on the travel ban. They will also decide whether or not to hear the case as a whole — with arguments in that case likely not happening until October.)

Trump’s own administration had long argued that the order was not a “travel ban.” The president casually dismissed that position.

But Margo Schlanger, a law professor at the University of Michigan and a former civil rights official at the Department of Homeland Security during the Obama administration, noted to Yahoo News that the single tweet the Ninth Circuit quoted in its decision is a fairly mundane description of the policy implications of his executive order.

“It’s really focused on an uncontroversial piece of it,” Schlanger said. “I don’t think this is an example of the president in the early hours of the morning doing damage to this case. … I don’t really think this one was a screwup.”

The Ninth Circuit decided its case on statutory grounds instead of constitutional grounds — meaning they concluded that the government was overstepping portions of Congress-passed immigration laws instead of violating constitutional rights like the Establishment Clause. Courts that have made constitutional arguments against the executive order have focused on whether the policy was driven by religious animus against Muslims, citing statements from Trump and his associates calling for a “Muslim ban” as evidence.

If the Supreme Court takes the case and decides it on constitutional grounds, Trump’s tweets would likely make their way into footnotes in dissents, opinions and friend-of-the-court briefs for months to come.

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