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On Monday, the three judges on the 9th Circuit Court of Appeals passed a unanimous decision to continue to block the Trump administration’s revised travel ban, which barred individuals from six Muslim-majority countries for 90 days and refugees for 120 days. The ruling comes less than one month after the 4th Circuit Court of Appeals found the ban unconstitutional. The Justice Department supports the ban and will take the case to the Supreme Court.

The 9th Circuit decision did not declare the ban unconstitutional. Instead, the judges found Trump’s ban “exceeded the scope of the authority delegated to him by Congress” by The Immigration and Nationality Act, a federal immigration law.

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

The decision argued that the administration failed to justify why 180 million people should be banned based on nationality:

“The order makes no finding that nationality alone renders entry of this broad class of individuals a heightened security risk to the United States. The order does not tie these nationals in any way to terrorist organizations within the six designated countries. It does not identify these nationals as contributors to active conflict or as those responsible for insecure country conditions. It does not provide any link between an individual’s nationality and their propensity to commit terrorism or their inherent dangerousness. In short, the order does not provide a rationale explaining why permitting entry of nationals from the six designated countries under current protocols would be detrimental to the interests of the United States.”


Similarly, the judges argued that Trump failed to “reveal any threat or harm to warrant suspension” of refugees “for 120 days and does not support the conclusion that the entry of refugees in the interim time period would be harmful.”

ABC News’ Kate Shaw explains, however, how the 9th Circuit decision complicates the case against the ban. “The 9th Circuit opinion reaches the same conclusion—that the order is in large part invalid—but takes a totally different route,” she said, comparing it the to the 4th Circuit ruling, which found the ban unconstitutional. “It doesn’t reach the constitutional argument at all, instead concluding that the order exceeded the president’s statutory authority. This could conceivably provide some members of the Supreme Court with an alternative means by which to strike down the order, if they’re dubious about the order but not totally convinced by the constitutional arguments against it or if they wish to avoid the difficult question of whether and when it’s appropriate to rely on presidential statements or campaign statements.”


Reacting to the decision, White House Press Secretary Sean Spicer said, “We continue to be confident that the president’s executive order to protect this country is fully lawful and ultimately will be upheld by the Supreme Court.” The Supreme Court has not yet said whether it will take up the case.