Travel ban: the old one, the new one, and the ‘what next?’
A few days ago, Oct. 10 had been circled on calendars around the country – the day the Trump administration would make its first appearance before the US Supreme Court, to argue for the full enforcement of President Trump’s controversial “travel ban” executive order.
Monday afternoon, in a one-paragraph order, the justices kicked that can down the road. One of the longest, most contentious, and confusing subplots of Donald Trump’s presidency is now going to have to play a little – or perhaps a lot – longer.
With the Trump administration issuing a third version of the order Sunday, the argument that the case before the high court – which concerns the second iteration of the order – is now moot just became much stronger. If the justices decide that the case is moot, they would be able to resolve it without exploring the thorny statutory and constitutional questions it raises. Today’s order from the justices asks the parties involved to file briefs by Oct. 5 explaining whether, and to what extent, the case is now moot, while also removing it from their October calendar.
Whatever happens 10 days from now, this issue is far from resolved. Here are some questions looking at how we got here, and where we could go next:
Q: What is the travel ban?
The ban at issue is the second version of an executive order regarding immigration. The first order, authored with limited input from federal immigration agencies and issued weeks after Trump took office, banned for 90 days entry for citizens from Iraq, Iran, Syria, Libya, Somalia, Sudan, and Yemen, and banned the admission of all refugees for 120 days (or, for refugees from Syria, indefinitely). The Trump administration has cited national security interests as the justification for the order, but critics instead see it as a veiled effort to implement a “Muslim ban” he promised during his presidential campaign.
After mass protests and successful legal challenges around the country, Trump issued a revised executive order in March. The new order removed Iraq from the list of banned countries, included refugees from Syria in the 120 day-ban, and addressed several perceived legal flaws in its predecessor, such as excluding green card holders and specifying the links to terrorist organizations in the other six countries. The 90-day ban was going to expire at midnight Sunday, prompting the Trump administration to issue its new executive action.
Effective Oct. 18, the new proclamation indefinitely restricts travel for citizens from Iran, Syria, Libya, Somalia, and Yemen, as well as North Korea, Chad, and some government officials from Venezuela. The new restrictions are "conditions-based, not time-based" an administration official told The Washington Post, and vary by country. If security conditions improve in a country, it seems, restrictions could be relaxed or removed. Sudan has been removed after agreeing to accept large numbers of Sudanese nationals deported from the US, according to news reports.
"As president, I must act to protect the security and interests of the United States and its people," Trump said in a statement.
Q: How did we get here?
Three separate federal judges blocked the implementation of the first travel ban, and a panel of three judges on the 9th Circuit US Court of Appeals upheld that injunction. Refugee advocacy and civil liberties groups sued again after Trump issued his second order. Federal judges in Hawaii and Maryland blocked the implementation of key provisions of that order. On appeal, the 4th Circuit US Court of Appeals upheld parts of the Maryland ruling on the grounds that the order unconstitutionally discriminated against Muslims. In another appeal, the 9th Circuit upheld parts of the Hawaii ruling on the grounds that the order violated the Immigration and Nationality Act (INA).
The Trump administration appealed both decisions to the Supreme Court, which in June took up the case and allowed most of the order to go into effect. Next week, on Oct. 5, the justices will receive briefs from both sides arguing whether this case is now moot.
Q: What questions are at issue?
The justices were considering three questions regarding the travel ban. Two of them relate directly to the 4th and 9th Circuit decisions – namely, whether the order violates the INA or the Establishment Clause of the Constitution.
With the justices now focusing exclusively on whether the case has become moot or “otherwise nonjusticiable” – another question the court asked back in June – those questions on the substance of the travel ban order are now on the back burner. And they may stay there for a while.
The third travel ban order “makes it more likely that the court is simply not going to hear the travel ban case, at least not this term,” says Steven Schwinn, a professor at the John Marshall Law School in Chicago.
Even if they find the case moot, another significant question the Supreme Court may have to deal with – and deal with this term – is whether to uphold the lower court rulings in the case, which were all against the White House, or vacate them.
Q: Will there be more litigation?
Almost certainly. Opponents of the ban have already signaled that they could file suit over the most recent order.
“Six of President Trump’s targeted countries are Muslim. The fact that Trump has added North Korea — with few visitors to the U.S. — and a few government officials from Venezuela doesn't obfuscate the real fact that the administration's order is still a Muslim ban,” wrote Anthony Romero, executive director of the American Civil Liberties Union, which brought one of the challenges to the ban now before the court, in a statement.
Whether new plaintiffs will have to come forward, and where these new challenges could come from geographically, remains to be seen. But the arguments against the new proclamation are likely to be similar to the old ones.
“I don’t think it’ll be hard to find people willing to stand up and oppose this in court,” says Professor Schwinn, “but I think they’ll have to start a new case.”
And given how long it would take to litigate any new case through the lower courts, it’s unlikely the justices would hear a challenge to the new proclamation until next term at the earliest.
Q: How could courts view the new order?
The fact that the latest proclamation has come after the 90-day period in which the Trump administration said it was going to review the screening and security practices of the targeted countries may make the order more defensible in court.
“If this order is tailored to that review it does make the [religious discrimination] claim harder to make,” says Schwinn. “Did the government’s national security review kind of break the chain of causation between the earlier [anti-Muslim] animus and the third version of the order?”
Arguments that the order violates the INA – which prohibits the exclusion of individuals from entering the US on the basis of nationality – may be more relevant.
“I think that argument probably is still very much going to be in play with this third version,” says Schwinn. In the new proclamation “you still have the president designating by country who can come and who cannot.”
There have been hints, however, that there were enough votes on the high court to uphold the second travel ban in full.
With one preliminary judgment in July, Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch wrote a separate opinion saying all travelers from the six specified countries should have been banned.
That opinion suggests that “there are certainly three, and I think maybe five votes to uphold the policy,” writes Josh Blackman, an associate professor at the South Texas College of Law Houston, in an email to the Monitor.