June 12, 2017 (San Francisco) The 9th Circuit issued a second decision that goes against the Trump Justice Department. The Per Curiam decision did go into the objective of the executive order. It quoted it, “protect the American people from terrorist attacks by foreign nationals admitted to the United States.”
However, the decision also cited a recent report from Homeland Security that concluded that:
citizenship “is unlikely to be a reliable indicator of potential terrorist activity” and that citizens of countries affected by EO1 are “rarely implicated in U.S.-based terrorism.” Specifically, the DHS report determined that since the spring of 2011, at least eighty-two individuals were inspired by a foreign terrorist group to carry out or attempt to carry out an attack in the United States. Slightly more than half were U.S. citizens born in the United States, and the remaining persons were from twenty-six different countries—with the most individuals originating from Pakistan, followed by Somalia, Bangladesh, Cuba, Ethiopia, Iraq, and Uzbekistan.
The same report concluded that that foreign terrorist was radicalized several years after they arrived in the United States. Some decades.
The most significant part is that it did not recognize the absolute authority of the President.
‘We conclude that the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress. In suspending the entry of more than 180 million nationals from six countries, suspending the entry of all refugees, and reducing the cap on the admission of refugees from 110,000 to 50,000 for the 2017 fiscal year, the President did not meet the essential precondition to exercising his delegated authority: The President must make a sufficient finding that the entry of these classes of people would be “detrimental to the interests of the United States.”
This is what was very damaging for the White House and the Department of Justice. However, the court gave the administration a small technical victory. They are going to allow the administration to continue wit internal procedure review.
The Supreme Court will have to decide on whether accept this case. Moreover, both orders were limited in time, and that time frame might very well be over by the time the case is heard by the Supreme Court.