Supreme Court Takes Up Appeal Of Order Barring Enforcement Of Trump’s Muslim Travel Ban

The Supreme Court agreed to hear the Government's appeal of the Trump Administration's revised Muslim Travel Ban

Trump Muslim Ban

Yesterday, the Supreme Court agreed to take up the Federal Government’s appeal of a decision by the Ninth Circuit Court of Appeals striking down the third version of President Trump’s Executive Order banning most travel to the United States from six predominantly Muslim nations and North Korea along with a small group of people from Venezuela:

WASHINGTON — The Supreme Court announced on Friday that it would consider a challenge to President Trump’s latest effort to limit travel from countries said to pose a threat to the nation’s security, adding a major test of presidential power to a docket already crowded with blockbusters.

The case concerns Mr. Trump’s third and most considered bid to make good on a campaign promise to secure the nation’s borders. But challengers to the latest ban, issued as a presidential proclamation in September, said it was tainted by religious animus and not adequately justified by national security concerns.

The decision to hear the case, Trump v. Hawaii, No. 17-965, came almost a year after the first travel ban, issued a week after Mr. Trump took office, caused chaos at the nation’s airports and was promptly blocked by courts around the nation. A second version of the ban, issued in March, fared little better, though the Supreme Court allowed part of it go into effect in June when it agreed to hear the Trump administration’s appeals in two cases.

But the Supreme Court dismissed those appeals in October after the second ban expired. There is no reason to think the latest appeal will fizzle out, as the September order, unlike the earlier ones, is meant to last indefinitely. The justices are likely to hear arguments in the latest case in the spring and to issue a decision in late June.

The ban restricts travel from eight nations, six of them predominantly Muslim. For now, most citizens of Iran, Libya, Syria, Yemen, Somalia, Chad and North Korea will be barred from entering the United States, along with some groups of people from Venezuela.

The restrictions vary in their details, but for the most part, citizens of the countries are forbidden from emigrating to the United States and many of them are barred from working, studying or vacationing here.

In December, in a sign that the Supreme Court may be more receptive to upholding the September order, the court allowed it to go into effect as the case moved forward. The move effectively overturned a compromise in place since June, when the court said travelers with connections to the United States could continue to travel here notwithstanding restrictions in an earlier version of the ban.

Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented from the December ruling.

Hawaii, several individuals and a Muslim group challenged the latest ban’s limits on travel from six predominantly Muslim nations; they did not object to the portions concerning North Korea and Venezuela. They prevailed before a Federal District Court there and before a three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco.

The appeals court ruled that Mr. Trump had exceeded the authority Congress had given him over immigration and had violated a part of the immigration laws barring discrimination in the issuance of visas.

In his brief urging the Supreme Court to hear the case, Solicitor General Noel J. Francisco wrote that the president has vast constitutional and statutory authority over immigration. He added that the third order had been the result of “an extensive, worldwide review by multiple government agencies.”

“The courts below,” Mr. Francisco wrote, “have overridden the president’s judgments on sensitive matters of national security and foreign relations, and severely restricted the ability of this and future presidents to protect the nation.”

The appeals court based its ruling on immigration statutes, not the Constitution’s prohibition of religious discrimination. But both sides urged the Supreme Court to consider both the statutory and constitutional questions if it agreed to hear the case.

Lawyers for the challengers told the justices that Mr. Trump’s own statements provided powerful evidence of anti-Muslim animus. The latest order, they said, was infected by the same flaws as the previous one.

“The president has repeatedly explained that the two orders pursue the same aim,” the challengers wrote. Nine days before the September order was released, they wrote, “the president demanded a ‘larger, tougher and more specific’ ban, reminding the public that he remains committed to a ‘travel ban’ even if it is not ‘politically correct.'”

On the day the September order became public, the challengers added, “the president made clear that it was the harsher version of the travel ban, telling reporters, ‘The travel ban: the tougher, the better.

SCOTUSBlog’s Amy Howe summarizes the arguments and the issues that the Justices will consider in this case:

In a brief filed just two weeks ago, the federal government told the justices that the most recent version of the ban is different from earlier iterations. The earlier orders, it explained, were “premised on uncertainty about the adequacy of other governments’ information-sharing,” while the current version responds to “specific findings that a handful of countries have deficient information-sharing practices or other factors that prevent the government from assessing the risk their nationals pose to the United States.” By barring the president from excluding nationals from those countries, the Trump administration warned, “the courts below have overridden the President’s judgments on sensitive matters of national security and foreign relations, and severely restricted the ability of this and future Presidents to protect the nation.”

Hawaii responded seven days later, urging the Supreme Court to stay out of the dispute. The state characterized the September 24 order as a “direct descendant” of the earlier versions, emphasizing that the most recent order “continues to ban all immigration from five of the six overwhelmingly Muslim countries covered by” the March 6 order while imposing only “token restrictions” on two non-Muslim-majority countries. The state emphasized that the 9th Circuit’s decision “did not question ‘the President’s judgments on sensitive matters of national security’ or ‘restrict’ the sphere of the President’s authority beyond the limits recognized by every prior Administration.” Instead, the state wrote, the lower-court ruling merely “vindicated the judicial role, by ensuring that the President adheres to the limits on his authority that the People and their representatives have imposed.”

In granting the government’s petition, the justices agreed to consider the three questions presented by the Trump administration: Whether courts can review a challenge to the September 24 order at all; whether the order falls within the president’s authority over immigration; and whether the district court’s order applies too broadly. They also agreed to take up a fourth question, broached by Hawaii: whether the September 24 order violates the Constitution’s establishment clause, which (among other things) bars the government from favoring one religion over another. The 9th Circuit did not rule on the establishment clause question, but it is one of the issues raised in another challenge to the September 24 order, which is currently pending in the U.S. Court of Appeals for the 4th Circuit. The 4th Circuit heard oral argument in that case on December 8 but has not yet issued its decision.

This was relatively fast action from the Court considering that the Ninth Circuit had handed its decision down just under a month ago, but that likely has to do with the fact that the Federal  Government filed its petition for review relatively soon after that decision and that the case involves a significant national issue. That Ninth Circuit ruling, of course, came just a few weeks after the Justices had lifted the temporary injunction that had been placed on enforcement on the new version of the travel ban, which permitted it to on into effect pending further rulings from lower courts. That ruling, of course, was not a ruling on the merits of the case and did not have a real impact on the two cases proceeding before the Ninth and Fourth Circuit Courts of  Appeal resulting from District Court rulings in Hawaii and Maryland respectively. The rulings from those two District Court judges were released just one day before the revised indefinite travel ban was set to go into effect. Under this supposedly final version of the ban, travel to the United States was barred to virtually everyone from Iran, Libya, Syria, Yemen, Somalia, and Chad, all of which are majority Muslim nations. Also banned travel to the United States were people from North Korea and certain individuals with ties to the government of Venezuela. As I observed when the new travel ban was released, the addition of Chad was somewhat odd given the fact that this nation had been working with the U.S. for years in the fight against Boko Haram and other African terror groups.  The other additions to the list, North Korea and Venezuela, meanwhile, appeared at the time to be a deliberate diversion given the fact that there is essentially no immigration of any kind from North Korea into the United States and the limits on travel from Venezuela only apply to a handful of people. The clear intent of the ban, then, was to target mainly the residents of the majority Muslim nations on the list.

As both judges found in their respective opinions, this new order adds significantly to the temporary ban issued in late January which was blocked by a Federal District Court Judge in Washington state and the Ninth Circuit Court of Appeals earlier this year. After those orders, the Administration issued a revised ban that purported to address the problems pointed out in the initial order. That order purported to make certain changes to the bill but was itself struck down both by Federal Judges across the nation and by the Fourth and Ninth Circuit Courts of Appeal. In June, the Supreme Court issued a ruling regarding the Trump Administration’s Executive Order that banned travel from six predominantly Muslim nations that upheld the ban in some respects but also ruled that it could not be applied to all immigrants from these nations. Specifically, the Court ruled that exceptions must be made for people with valid visas, and those with bona fide family or business connections to the United States, although it didn’t specify what it meant by that. The injunctions that were issued by these Judges were later upheld by both the Fourth and Ninth Circuit Courts of Appeal, at which point the Trump Administration appealed to the Supreme Court.

The Court’s order on Friday accepting the case did not set a date for oral argument or a briefing schedule for the parties and anyone interested in filing amicus curarie briefs, but that is typically how the Court operates. Most likely, the Court will issue a notice sometime within the next month setting the case down for oral argument during either its March sitting or its April sitting, which are presently the only open spaces left on what has shaped up to be a busy and potentially legally significant term for several reasons. Once the hearing date is set the briefing schedule will follow from that. Given the issues involved and the likely timing of oral argument, it’s likely that we’ll have to wait until the end of the term in June for a decision in this case. In the meantime, you can keep up with past and future filings in this case, which is styled Trump et al v. Hawaii et al., at the SCOTUSBlog information page for the case.

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Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.