While the most controversial provisions of the President’s revised ban blocking travel to the US remain tied up in the courts, a federal appeals court formally cleared the way late Monday for different portions of the executive order to move forward.
The Trump administration can now conduct internal reviews of other countries’ vetting procedures for visa applicants while the broader case is on review in the US Supreme Court.
Last week a three-judge panel on the 9th Circuit Court of Appeals largely affirmed a lower court’s decision to halt the core provisions of President Donald Trump’s revised executive order that attempted to limit travel from six predominately Muslim countries and block refugees.
However, the 9th Circuit concluded that US District Court Judge Derrick Watson’s decision was overbroad in certain limited respects, and reversed the portions of Watson’s ruling that barred the administration from conducting internal reviews of other countries’ vetting procedures — a move Secretary John Kelly called a “big win” last week in an interview with CNN’s Tal Kopan.
This part of the ruling “was not narrowly tailored to addressing only the harms alleged,” the 9th Circuit panel explained. “For example, internal determinations regarding the necessary information for visa application adjudications do not have an obvious relationship to the constitutional rights at stake or statutory conflicts at issue here. Plaintiffs have not shown how the government’s internal review of its vetting procedures will harm them.”
Normally, the 9th Circuit’s decision would sit for 52 days while the parties tie up loose ends, but last week the Justice Department asked the court for a speedy mandate to make its decision from June 12 take effect immediately — a request the court granted Monday, thereby specifically allowing the vetting portions of the executive order to proceed now.
Legal experts caution, however, that this “win” for the administration may have an unintended practical effect.
“Procedurally, this is a narrow, but significant, victory for the government,” said Steve Vladeck, CNN legal analyst and professor of law at the University of Texas School of Law. “But it may have the opposite effect substantively. The stated purpose of the entry ban was to allow the government to conduct this internal review. If it’s now able to conduct that review while the ban itself remains on hold, that may undermine the justification for the ban in the first place.”
The Department of Homeland Security did not immediately respond to a request for comment.