The omission was deliberate. I think the 9th Circus is cocky under the current circumstances given that SCOTUS is split 4-4 and the lib justices are very prone to circle the wagons when it suits them.
It had to be deliberate because otherwise they would have had to declare the actual statute unconstitutional because the wording is very clear. They know that the Congress has plenary power in these matters and with the statute Congress passed that enormous power to the President.