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Hawaii v. Trump - 859 F.3d 741 (9th Cir. 2017)


The Immigration and Nationality Act gives the President broad powers to control the entry of aliens, and to take actions to protect the American public. But immigration, even for the President, is not a one-person show. The President's authority is subject to certain statutory and constitutional restraints.


On January 27, 2017, President Donald J. Trump issued Executive Order 13769 (EO1) one week after inauguration and without interagency review. The EO1, entitled "Protecting the Nation from Foreign Terrorist Entry into the United States," stated that its purpose was to "protect the American people from terrorist attacks by foreign nationals admitted to the United States." EO1 took immediate effect, causing great uncertainty as to the scope of the order, particularly in its application to lawful permanent residents. The States of Washington and Minnesota filed suit to enjoin EO1. After several injunctions and appeals were raised, the President issued EO2, also entitled "Protecting the Nation From Foreign Terrorist Entry Into the United States" revised Order was to take effect on March 16, 2017, at which point EO1 would be revoked.

Although EO2 reiterated a 90-day ban on travel for nationals of six of the seven majority-Muslim countries identified in EO1: Iran, Libya, Somalia, Sudan, Syria, and Yemen, EO2 expressly stated that EO1 "did not provide a basis for discriminating for or against members of any particular religion" and was "not motivated by animus toward any religion." The State of Hawai'i (State) and several other plaintiffs, which had filed a motion for a Temporary Restraining Order (TRO) seeking to enjoin EO1, filed an amended complaint challenging EO2 in order "to protect its residents, its employers, its educational institutions, and its sovereignty." On March 15, 2017, the district court granted the TRO, holding that Plaintiffs had shown a likelihood of success on the merits of their Establishment Clause claim, and entered a nationwide injunction prohibiting enforcement of two specific sections of EO2. The United States sought appellate review, requesting that the preliminary injunction be vacated, or at least narrowed, as well as an order to stay the injunction pending appeal.


Did President Trump exceed his authority when he issued the Executive Orders?




The United States Court of Appeals for the Ninth Circuit affirmed in part and vacated in part, holding that the President exceeded his authority in issuing an order excluding nationals of specified countries from entry into the United States since there were no adequate findings that entry of excluded nationals would be detrimental to the interests of the United States, that present vetting standards were inadequate, or that absent improved vetting procedures there likely would be harm to the national interests. The EO improperly suspended entry of the nationals on the basis of their country of origin, since the order in substance operated as a prohibited discriminatory ban on visa issuance on the basis of nationality.

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