Supreme Court Agrees to Hear Legal Challenges to Third Travel Ban

January 22, 2018 - (4 min read)

In Trump v. Hawaii, the Ninth Circuit temporarily struck down President Trump’s third travel ban. Because of a Supreme Court order issued in December 2017, however, the third travel ban is currently in effect, regardless of the Ninth Circuit ruling.

Now, the Supreme Court has agreed to review the Ninth Circuit decision — and an opinion should be issued no later than the end of June 2018.

The Court has agreed to decide four issues: First, whether the case is justiciable, meaning whether the legal issues are “fit for review.” Second, whether the third travel ban exceeds the President’s authority under the Immigration and Nationality Act (INA). Third, whether the Ninth Circuit nationwide injunction was overbroad. Fourth, whether the travel ban violates the Establishment Clause.

The president’s March 6, 2017 executive order (the second travel ban) prevented people from six predominately Muslim countries from entering the United States for 90 days. In June 2017 the Supreme Court temporarily prevented it from going into effect against those with a “bona fide relationship with a person or entity in the United State” until the Court could hear the case on the merits in early October 2017.

The second travel ban was set to expire on September 24, 2017. That day the President issued a presidential proclamation (the third travel ban) indefinitely banning immigration from six countries:  Chad, Iran, Libya, North Korea, Syria, and Yemen. Persons from some of these countries and Venezuela also may not receive particular non-immigrant visas. Following the presidential proclamation the Supreme Court dismissed the case challenging the second travel ban.

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Shortly before the third travel ban was supposed to go into effect in October 2017 federal district courts in Hawaii and Maryland issued temporary injunctions blocking it. In December 2017 the Ninth Circuit affirmed the Hawaii district court decision.

The Ninth Circuit concluded the third travel ban likely violates the INA because it prohibits entry indefinitely, fails to make findings that “foreign nationals’ nationality alone renders entry of this broad class of individuals a heightened security risk to the United States,” and amounts to national origin discrimination.

The Ninth Circuit didn’t reach the question of whether the third travel ban likely violates the Establishment Clause because it discriminates against people based on religion. The Maryland federal district court concluded it likely does because the third travel ban “does not abandon this fundamental approach [of excluding persons from multiple majority-Muslim countries], but rather doubles down on it, because rather than imposing a temporary, 90-day travel ban, the Proclamation establishes an indefinite travel ban.”

The Ninth Circuit issued a nationwide injunction applying to “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” The court’s reasoning why it issued a nationwide injunction, rather than just an injunction applicable to the parties, was brief:  “Because this case implicates immigration policy, a nationwide injunction was necessary to give Plaintiffs a full expression of their rights.”

The issue of when lower courts may issue nationwide injunctions, if the Court reaches it (it may not if it rules the travel ban is lawful and constitutional), will have implications well-beyond the context of this case.

Particularly in the last year numerous lower courts have issued nationwide injunctions against the Trump administration, in the sanctuary jurisdictions context in particular. This practice has been controversial because nationwide injunctions apply to many people and entities other than the parties.

lisa_soronen_new_125x150About the author: Lisa Soronen is the executive director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations, including the National League of Cities, representing state and local governments. She is a regular contributor to CitiesSpeak.