Donald Trump had already rewritten his controversial travel ban once in an attempt to survive the courts.
It wasn't enough.
On June 12, 2017, a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit largely upheld an injunction preventing the Trump administration from enforcing major portions of its revised immigration order.
It was another significant setback for one of the signature policies of Trump's young presidency—and another reminder that rewriting the original order had not ended the administration's legal problems.
The Ninth Circuit summarized the limits on presidential authority in unusually direct language:
> “Immigration, even for the President, is not a one-person show.”
The court concluded that Trump had exceeded the authority Congress had granted the president under federal immigration law.
For an administration that had repeatedly defended the travel restrictions as an exercise of sweeping presidential authority over immigration and national security, the ruling struck directly at that argument.
The Second Attempt
Trump's original January 27 travel order had produced immediate chaos.
Travelers were detained at airports. Families were separated. Demonstrators gathered at terminals around the country. Lawyers rushed to airports and courthouses.
Federal judges intervened almost immediately.
After the original order became entangled in litigation, the administration replaced it on March 6 with a revised executive order designed to address some of the legal problems surrounding the first version.
The new order removed Iraq from the list of restricted countries and applied the temporary entry suspension to nationals of six countries:
Iran.
Libya.
Somalia.
Sudan.
Syria.
Yemen.
The revised order called for their entry to be suspended for 90 days while the government reviewed its screening and vetting procedures.
It also suspended the U.S. refugee admissions program for 120 days and sought to reduce the number of refugees admitted during fiscal year 2017.
The administration argued that these measures were necessary to protect national security.
Opponents argued that the changes did not cure the fundamental problems with the policy.
The courts again intervened.
Hawaii Challenges the Order
One of the most important challenges came from Hawaii.
U.S. District Judge Derrick Watson blocked major portions of the revised order before they could take effect.
The Trump administration appealed.
That brought the case before the Ninth Circuit, where Judges Michael Daly Hawkins, Ronald Gould and Richard Paez considered whether the injunction should remain in place.
On June 12, all three agreed that most of it should.
But the reasoning was particularly important.
The Ninth Circuit did not need to decide whether Trump's order violated the Constitution's prohibition against government establishment of religion.
Instead, the judges concluded that Trump had exceeded the authority Congress had actually given him.
Presidential Power Has Limits
Trump relied heavily on Section 212(f) of the Immigration and Nationality Act, which gives presidents broad authority to suspend the entry of foreign nationals when their admission would be “detrimental to the interests of the United States.”
The administration viewed that language as providing extensive presidential discretion.
The Ninth Circuit disagreed with the way Trump had used it.
The court said the president had failed to make a sufficient finding that allowing the affected classes of people into the country would actually be detrimental to American interests.
The order, the judges noted, suspended entry for more than 180 million nationals of six countries.
The court also concluded that portions of Trump's order conflicted with other provisions of federal immigration law, including restrictions on nationality-based discrimination in immigrant visa issuance and procedures established by Congress for setting annual refugee admissions.
The president possessed broad immigration authority, the judges acknowledged.
But broad authority was not unlimited authority.
Congress had written the immigration laws.
The president still had to operate within them.
Another Court, Another Problem
The ruling was particularly damaging to the administration's legal position because another federal appeals court had already ruled against the revised travel ban for a different reason.
In May, the Fourth Circuit had largely upheld a separate injunction against the order.
That court focused heavily on the constitutional question surrounding religious discrimination and Trump's previous statements about restricting Muslim immigration.
The Ninth Circuit took another path.
Its ruling rested primarily on federal statutes.
That meant the administration was now confronting major appellate defeats based on two different legal theories.
One court questioned whether the order was constitutionally tainted by religious discrimination.
Another concluded that Trump had exceeded the immigration powers Congress had given him.
The administration had revised the policy.
The legal challenges remained.
Not a Complete Victory for Trump's Opponents
The Ninth Circuit did narrow portions of the lower court's injunction.
It ruled that the administration could continue conducting the internal government review of immigration vetting procedures ordered by Trump.
The appeals court also concluded that the injunction should not run directly against Trump himself, distinguishing between restraining the president personally and preventing executive-branch officials from implementing the challenged provisions.
But those changes did not rescue the central portions of the travel restrictions.
The 90-day entry suspension and major refugee provisions remained blocked.
The administration's second attempt at implementing the policy had once again run into the federal judiciary.
The Fight Was Heading Toward the Supreme Court
By June, there was little reason to believe the dispute would end at the appeals-court level.
The administration had already asked the Supreme Court to intervene in the travel-ban litigation.
The legal fight now involved fundamental questions about presidential authority, congressional control over immigration, religious discrimination and the judiciary's ability to review national-security decisions made by the executive branch.
Two weeks after the Ninth Circuit decision, the Supreme Court would agree to hear the travel-ban cases and allow portions of the revised policy to take effect while the litigation continued.
But that had not happened yet.
On June 12, the administration's record in the lower courts remained deeply troubled.
Trump Had Changed the Order, but Not the Result
The political importance of the ruling stretched back to Trump's presidential campaign.
In December 2015, candidate Trump had called for what his campaign described as a “total and complete shutdown of Muslims entering the United States.”
After becoming president, Trump issued his first travel order.
The courts blocked major portions of it.
His administration rewrote it.
The courts blocked major portions of the replacement.
Now two federal appeals courts had independently concluded that the revised policy could not proceed as written, even though they reached that result through different legal reasoning.
That distinction mattered.
The Ninth Circuit wasn't simply declaring that it disliked Trump's immigration policy.
It examined the authority Congress had granted the president and concluded that Trump had gone beyond it.
The administration would continue fighting.
The Supreme Court would soon enter the dispute.
And the travel-ban story was far from finished.
But on June 12, Trump's attempt to rescue one of the most controversial policies of his presidency had suffered another major defeat.
The first order had failed to survive the courts.
Now the rewritten version was struggling to survive them too.