The Appeal Court of the Ninth Circuit has refused the US government’s request for a lifting of the stay of President Trump’s two ‘travel ban’ Executive Orders.
The Judgment of the Appeal Court of the Ninth Circuit can be read here.
Essentially the Judgment finds that the two Executive Orders are discriminatory notwithstanding the clear language in the second that it is not. It arrives at this conclusion by conflating what are usually considered the two entirely separate questions of visa entry and immigration, the argument being that because the Executive Orders make obtaining US visas by the nationals of the designated countries extremely difficult, that in turn prevents somehow stops them from applying to immigrate to the US, and is therefore discriminatory.
I am not an expert on US immigration law, but personally I find this argument difficult to understand given that the two Executive Orders are supposed to be temporary measures, to be put in effect for national security purposes for only a limited period until tighter visa regulations are introduced. The Appeal Court of the Ninth Circuit rightly points out that that the President has failed to give any indication of the way in which the existing visa regulations are too lax and how this supposedly threatens US national security. However this seems to me a matter within the President’s authority as head of the executive.
Obviously if he is unable to come up with new visa regulations within the stringent time periods set out in the Executive Orders then it is appropriate for the courts to question his actions. However until that happens I am not sure it is proper for the courts to interfere in the President’s decisions in this way.
In any event, though it should be stressed that the Judgment of the Appeal Court of the Ninth Circuit purely concerns the stay rather than the legality of the Executive Orders themselves, it seems to me that the point has now been finally reached where it is right and proper for the President to take his case to the Supreme Court. Federal Courts in different states have come to completely different views about the two Executive Orders, and it seems to me that the time has now come for the Supreme Court to resolve this question once and for all by having its say.