Appeals Court Limits Injunction Blocking National Security Efforts


Yesterday, the Ninth Circuit Court of Appeals stayed most of a Hawaii federal judge’s recent injunction against President Trump’s Proclamation to begin enhanced vetting procedures of foreign nationals seeking entry into the United States. The injunction prevented the full implementation of the Proclamation, which was issued on September 24th.

Back in March, President Trump issued a National Security Executive Order that, among other things, called for a global review by the Secretary of Homeland Security of nearly 200 countries to determine whether they provide sufficient information to us about their nationals seeking entry into our country. The Secretary was to report the findings to the President. During the review, there was supposed to be a 90-day suspension of entry into this country of nationals from six countries with terrorism-related concerns (Iran, Libya, Somalia, Sudan, Syria, and Yemen).

Earlier this year, the Executive Order was enjoined by federal judges in Hawaii and Maryland, both of whom also recently enjoined the Proclamation. The Supreme Court later dismissed, as moot, the Hawaii and Maryland cases involving the Executive Order after its terms had expired.

As a result of the global review called for by the Executive Order, the Acting Secretary of Homeland Security informed the President that eight countries (Chad, Iran, Syria, Libya, Somalia, North Korea, Venezuela, and Yemen) did not satisfy our security criteria. After reviewing the information and consulting within the Executive Branch, the President issued the Proclamation and imposed immigration restrictions on nationals from those eight countries until the countries comply with our security criteria.

In October, the Hawaii judge determined in part that the President did not provide sufficient findings to support the Proclamation and blocked the implementation of the Proclamation as it relates to nationals from Chad, Iran, Syria, Libya, Somalia, and Yemen. This ruling conflicts with the broad constitutional and statutory authority the President has to suspend or restrict the entry of aliens when he determines that it is in our country’s best interest to do so based on his consideration of the evidence. The federal government filed an appeal to the Ninth Circuit and also requested that the Ninth Circuit stay the injunction pending the appeal.

Yesterday, the Ninth Circuit granted the government’s requested stay, in part, and limited the Hawaii judge’s injunction against the Proclamation. The Ninth Circuit’s ruling followed the limitations imposed by the Supreme Court when it partially stayed the implementation of the injunctions against the Executive Order earlier this year. The Ninth Circuit wrote:

The preliminary injunction is stayed except as to “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States”…. The injunction remains in force as to foreign nationals who have a “close familial relationship” with a person in the United States…. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading [the Proclamation].

The Ninth Circuit’s ruling means that, as the case proceeds on appeal, the Hawaii judge’s injunction will not prevent the Proclamation from being enforced against foreign nationals from the subject countries who do not have a concrete relationship, family or otherwise, with an American person or entity.

The Ninth Circuit will hear oral argument in the Hawaii case on December 6th, while the Fourth Circuit Court of Appeals will hear oral argument in the appeal of the Maryland federal judge’s injunction against the Proclamation on December 8th.

You can read the American Center for Law and Justice’s amicus (friend-of-the-court) brief defending the Proclamation here. The brief was filed with the support of the ACLJ’s Committee to Defend Our National Security from Terror, which represents more than 277,000 Americans who have backed the President’s efforts to protect this nation from the entry of foreign terrorists.

The Hawaii and Maryland cases will likely end up at the Supreme Court. The ACLJ will continue to defend the Proclamation as we did the National Security Executive Order. We will continue to keep you posted about these cases as well as about the other important work of the ACLJ.

Used with the permission of the American Center for Law and Justice.

Edward White is Senior Counsel with the ACLJ and has been practicing law for more than twenty-five years. He is a graduate of the University of Notre Dame Law School, where he was a Thomas J. White Center for Law & Government Scholar and managing and student articles editor of the Notre Dame Journal of Law, Ethics & Public Policy. Since 2000, White has been specializing in civil rights litigation, representing clients across the country primarily in the areas of free speech, religious freedom, sanctity of human life, and traditional family values.