Appeals court upholds Hawaii’s challenge of travel ban

The 9th U.S. Circuit Court of Appeals on Monday ruled in favor of Hawaii’s challenge of President Donald Trump’s revised travel ban, setting up a likely face-off before the U.S. Supreme Court.

“We’re very pleased with the decision,” state Attorney General Douglas Chin said at a Honolulu news conference following the court ruling in San Francisco.

Technically, Hawaii already had reached the high court hours earlier when it filed a motion in the morning opposing the Trump administration’s request for a stay against the injunction imposed by Hawaii federal District Judge Derrick Watson blocking the travel ban.

The request came as part of the administration’s appeal of the 4th U.S. Circuit Court of Appeals’ ruling against the revised ban a couple of weeks ago.

Now it appears the two will be considered together, but probably not until at least November following the Supreme Court’s summer break, which starts in a couple of weeks.

As Watson did in March, the 4th Circuit Court in Virginia last month cited Trump’s campaign statements as evidence that the 90-day ban on travelers from six Muslim-majority nations was a violation of the U.S. Constitution.

But the 9th Circuit on Monday went a different way, arguing the executive order actually violates federal immigration law.

“Immigration, even for the president, is not a one-person show,” the judges said. “The president’s authority is subject to certain statutory and constitutional restraints.”

U.S. Attorney General Jeff Sessions issued a statement saying the new decision would undermine national security. He vowed to appeal the ruling.

Chin said the court agreed with something Hawaii has been arguing from the beginning: that the travel ban violates the newest provisions of the federal Immigration and Nationality Act. Those provisions, which abolished the Japanese and Chinese exclusion acts, supersede an earlier provision that gave the president authority to reject broad classes of people in immigration policies.

Chin said he now remains “cautiously optimistic” as the high court will have to consider both statutory and constitutional arguments in deciding the fate of the president’s order.

“With the immigration statute, we might have a chance of convincing even the more conservative justices on the U.S. Supreme Court,” he said.

In its opinion, the 9th Circuit Court narrowed Watson’s ruling by allowing the federal government to conduct internal studies regarding vetting procedures, one of the primary arguments for why the ban was necessary in the first place.

Chin said one of the state’s arguments likely will be to point out that the urgent nature of the president’s 90-day executive order will be moot by November, especially since those vetting procedures should have been thoroughly studied by then.

“They’ve been saying that it was an emergency,” he said. “But if (the order) has been stopped all this time, is it really necessary?”

Hakim Ouansafi, chairman of the Muslim Association of Hawaii, praised the attorney general for standing with both Muslim Americans and the U.S. Constitution.

“No matter what happens at the Supreme Court, you have already won,” Ouansafi told Chin at the news conference. “This is a renewed hope for an America that stands for equality of human rights, for religious rights.”

Hawaii made the right decision challenging a travel ban that had “little factual basis and discriminated based strictly on national origin and religion,” Gov. David Ige said in a statement Monday. “We will continue to stand against any attempts to erode the Constitution’s protections and to violate existing laws.”

U.S. Sen. Brian Schatz called Monday’s court decision another win for the rule of law.

“The courts continue to affirm what we already know: The Muslim ban is un-American, unconstitutional and contrary to everything we stand for,” Schatz said in a statement.

U.S. Sen. Mazie Hirono also issued a statement: “Court after court has seen this Muslim ban for what it is: an illegal attack on a group of individuals singled out for their religion. Today is a victory not only for Hawaii, but for our shared American values. The decision is a welcome reminder that the federal courts serve an invaluable function in our system of checks and balances.”

In issuing its ruling Monday, the three-member 9th Circuit panel of Judges Michael Hawkins, Ronald Gould and Richard Paez — all appointed by President Bill Clinton — said Trump exceeded his authority under law by failing to demonstrate that American interests would be hurt without the order.

The president’s order not only failed to link citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen to terrorist organizations; it also did not offer adequate proof of their propensity to commit terrorist acts, the court said.

“In short, the order does not provide a rationale explaining why permitting entry of nationals from the six designated countries under current protocols would be detrimental to the interests of the United States,” the panel said.

Chin, speaking to reporters outside his Queen Street office, said Monday’s ruling is a prime example of the American system of checks and balances.

“The president doesn’t have broad, unfettered authorities. He’s not a dictator,” he said. “The branches check each other. This is everything we learned in social studies and high school coming together as it should.”

Chin said early criticism of the court challenge in Hawaii appears to be easing somewhat.

“People are starting to understand the historical moment we’re in right now,” he said.

Hired gun Neal Katyal, the Washington, D.C., attorney and former U.S. solicitor general who has been arguing the case for Hawaii, tweeted Monday that Chin and his staff, plus his own staff, “have worked day and night for this victory.”

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