The ninth circuit has ruled on the case of the travel ban of President Trump and until overturned we have new controlling law. I will try to examine all the implications of this decision.
Exemptions Must Be Specific in the Law or EO – The court based most of its decision on the due process rights of the green card holders that were initially part of the ban. In the EO there is a specific provision that allows the government to make exceptions on a case by case basis. The government used this and declared well before the case made it to the ninth circuit that green card holders were exempt from this EO. The court said that it could not take that into account as it was just a directive from the white house as to how to implement the EO and not on the law itself.
Clauses which allow for exemptions are now invalid as each specific instance must be listed in legislation or executive order. Directions made by the executive or legislative are not valid.
Intent is Derived from Surrogates and Public Statements – The court found that the travel ban may have the intent to be a muslim ban because of statements made by President Trump and Mayor Giuliani.
This is a break from normal procedure where you look to the law itself first. Since the EO only affected 7 countries out of dozens of majority muslim countries world wide it could not be a muslim ban by a plain reading of the EO. This means that any statement at any time by a public official can be used to make a law or EO unconstitutional.
For example if a politician were to make a public speech praising an industry or a specific company any law he takes part in could now have the benefit of that company as a motive and be declared unconstitutional no matter what the statute itself states.
Minorities Have No Special Treatment – The court had serious concerns about the EO favoring christian minorities in refugee applications because it was a religious test and it put the majority in the affected countries at a disadvantage.
As of this ruling religion is no longer a protected class. If the Germans started gassing their jews again then the court rules that they should not be given special protections. More realistically if the Chinese for instance start persecuting the Buddhists in Tibet or the Hindus and Muslims in India and Pakistan start something neither of them could be given special treatment. Scholarships available to Muslim students and other things of that nature should be unconstitutional as well according to this rule.
Over and above this any special treatment to minorities can be arguably declared unconstitutional as well using the same logic. In fact giving special treatment to Syrian refugees would be questionable as that would be detrimental to refugees from other countries.
Need Determines Constitutionality – In deciding the constitutionality of the travel ban the courts have said that they are not persuaded by the evidence provided by the government as to the need for a travel ban. They bring up the argument by the plaintiffs that terrorist attacks from these countries have not hit the US from these countries. As an aside let me point out that attacks have hit other countries in Europe we just don’t like to talk about it.
Others have said that it is asinine for the government to need to wait till a terror attack hits before placing a ban on travel from these countries. That is true but the most important development is the courts can now impose a need test to determine constitutionality. If the law is otherwise valid yet the courts are not convinced for a need for it despite the legislative or executive being convinced then it is unconstitutional. Of course the standard for need is left exclusively upon the courts to decide.
For example the US Senate could ratify a treaty. Since need is now part of the considerations it could be challenged and declared unconstitutional because the courts see no need for it.
Due Process is now Global- The courts held that even if the visa cardholders were not part of the equation the refugees in those countries were deprived of their rights without due process therefore the law is unconstitutional.
When sanctions are placed on Russia for example it could be challenged on these grounds as the sanctions would deprive the Russians citizens of either life, liberty, or property without giving each of them due process.
The ninth circuit just changed the way law works forever. Part of me wishes for the Supreme Court to uphold the decision just for the hilarity that would ensue.