Will the third time be the charm for the Trump administration?
An almost constant feature of Donald Trump’s presidency has been litigation over his trio of travel-ban executive actions, which restrict entry into the US for certain classes of immigrants from six Muslim-majority countries.
The travel ban has also become the primary battleground for larger debates over how the judicial system should respond to a presidency that has defied governmental orthodoxy in numerous ways.
The administration has framed the executive actions as tightening immigration policies to prevent potentially dangerous individuals from entering the country. For litigants – who have included national civil rights and immigrant advocacy groups, state governments, universities, and individuals around the country – the executive actions represent a thinly veiled attempt to implement the “Muslim ban” Trump promised during his presidential campaign.
Plaintiffs have consistently argued that the executive actions violate both congressional immigration law and the Constitution. Lower courts, for the most part, have agreed.
Yet a definitive ruling on these issues has eluded the courts so far, in part because the first two executive actions were temporary. In an unsigned opinion in June, the US Supreme Court allowed portions of the second order to go into effect, and set a date for arguments. When that 90-day ban expired, Trump issued a third iteration of the ban (set to go into effect Wednesday) and the high court dropped the earlier case. Since this third travel ban is indefinite, legal challenges to it – which began Monday afternoon with oral arguments in a federal district court in Maryland – are certain to deliver a resolution to at least some of these issues, potentially even by the end of this year’s Supreme Court term.
The arguments against all three versions of the travel ban have remained largely the same, despite shifting provisions the orders (described in a postscript below). Plaintiffs argue that the third travel ban, like its predecessors, violates the 1965 Immigration and Nationality Act (INA), which prohibited discrimination against immigrants on the basis of nationality. They also argue that it discriminates based on religion.
Beyond that, the litigation over the past 10 months has provoked a discussion over whether courts should treat Trump differently from previous presidents. Specifically, the judiciary has traditionally given broad deference to the executive branch on immigration and national security matters. For the Trump administration, the judiciary has given more scrutiny.
“We are in the second chapter of that,” says Muzaffar Chishti, director of the Migration Policy Institute’s New York office. “There was some need for these courts to react to the Trump presidency… Will they react the same way nine months later as they reacted three months later?”
The arguments that started Monday are being heard by the same person, US District Judge Theodore G. Chuang, who blocked portions of the second travel ban order in March. It’s common practice for judges to hear cases concerning issues they’ve reviewed before.
For this case, the government argued in its brief that the context around the new travel ban has changed enough to render it both constitutional and permissible under the INA.
Over the summer, the administration conducted a multi-agency global review of security risks posed by various countries – a review that saw Sudan dropped from the list of banned countries while adding Chad and two nations that do not have Muslim majorities, North Korea and Venezuela. The review, the government argued in its brief, “severs any connection between [the second travel ban’s] supposed religious purpose and” the third travel ban.
The national-security argument
The third travel ban also doesn’t run afoul of the INA, the government claims, because “Congress has set the minimum requirements for an alien to gain entry, but has also granted the President authority to impose additional restrictions when he deems appropriate.” Siding with the plaintiffs, the government added, “would severely circumscribe the President’s authority” and “threatens the ability of this or any future President to take steps that are necessary to protect the Nation.”
Indeed, the government’s central argument is that the national security issues at play are beyond the court’s purview. Once the administration has shown that national security interests animated the travel restrictions – interests determined by the global review – the courts have no authority to look behind a presidential order restricting the entry of certain classes of immigrants.
Looking behind Trump’s executive orders was something the lower courts did routinely in prior travel ban cases. None of the three travel bans explicitly mentioned Muslims, but judges regularly cited statements from Trump and his surrogates – both during and after the campaign – as evidence that they were attempts to establish a de-facto “Muslim ban.” A panel of judges on the 4th Circuit Court of Appeals, who heard a challenge to Judge Chuang’s first ruling, wrote that the second travel ban order “drips with religious intolerance, animus, and discrimination” in siding against the government.
Although the Supreme Court vacated that 4th Circuit opinion, that court’s reasoning could still have significant sway over Judge Chuang’s reading of the third travel ban, says Steven Schwinn, a professor at the John Marshall School of Law in Chicago.
“You just cannot wipe clean the religious animus,” he says. Chuang isn’t mandated to follow the 4th Circuit ruling because it was vacated, but “he can certainly adopt the same reasoning.”
The fact that the third travel ban is indefinite, unlike the previous two versions, could also be an issue for the government.
The INA says “the president can deny entry to a class of immigrants for however long he deems necessary,” says Josh Blackman, an associate professor at the South Texas College of Law in Houston. “That makes sense when it’s temporary, but this is not temporary.”
Specifically, Congress amended the INA in 1965 for the central reason of making it easier for foreign nationals to visit family members (often referred to as “family reunification”). The third travel ban’s indefinite duration “undermines the structure and purpose of the [INA], thereby exceeding the power that Congress delegated to the President in the statute,” wrote Peter Margulies, a professor at Roger Williams School of Law, in the Lawfare blog last month.
Professor Blackman doesn’t think the ban’s indefinite duration will decide the case. The “as long as the president deems necessary” language in the INA “is fairly broad,” he says. But he does think the Supreme Court could rule on the case before its current term ends next June.
“I fully expect the judges [in Maryland and Hawaii] to write what they did before. That probably won’t stand up [later on] but it will probably be what happens at first,” he adds. So long as the Supreme Court can take up the case by March they could issue a decision before the 2018 summer break.
Judge Chuang asked tough questions Monday of lawyers representing plaintiffs seeking to block the executive action’s implementation, Reuters reported. Chuang said he would rule later on whether to grant the plaintiffs’ request.
The fact that the justices decided to allow parts of the second travel ban to go into effect but block other parts may indicate that the high court is willing to give the Trump administration more scrutiny than previous administrations, says Mr. Chishti.
“Whether that calculus will change on the executive order 3, we don’t know,” he adds, “but it was not good news for the administration that the [Supreme Court] was willing to say that the administration’s orders on immigration cannot be unchallenged.”
Postscript: How the three bans have differed
Travel ban #1: An executive order that suspended for 90 days entry to the US for immigrants from Iraq, Iran, Syria, Libya, Somalia, Sudan, and Yemen; suspended for 120 days the admission of all refugees to the US; indefinitely suspended the admission of refugees from Syria; and prioritized the admission of refugees who are religious minorities in their native countries.
Travel ban #2: An executive order that suspended for 90 days entry to the US for immigrants from Iran, Syria, Libya, Somalia, Sudan, and Yemen (Iraq was removed); suspended for 120 days the admission of all refugees to the US, including refugees from Syria (who had previously been banned indefinitely); and removed the language prioritizing the admission of refugees who are religious minorities in their native countries.
Travel ban #3: A presidential proclamation that placed indefinite restrictions on the entry of certain classes of immigrants and nonimmigrants from Iran, Syria, Libya, Somalia, Yemen, North Korea, and Chad, as well as a small number of government officials from Venezuela.