Bending Toward Justice: Supreme Court to review Trump’s third travel ban, issue decision by June

Photo: Samuel Corum/Anadolu Agency/Getty Images

The U.S. Supreme Court announced today that it would review the legality of President Donald Trump's third travel ban and issue a decision by the end of the current Court term in late June. The Court will decide if the President's authority under the Constitution and the Immigration and Naturalization Act of 1965 allows him to create such a ban.

Trump’s third travel ban was set forth in a Sept. 24, 2017 Executive Order that banned immigration from six majority-Muslim countries — Syria, Iran, Libya, Yemen, Somalia, and Chad — plus North Korea and government officials in Venezuela. The attorney general of Hawaii challenged the ban in federal district court in the state. U.S. District Judge Derrick Watson issued a temporary restraining order after finding that Trump acted illegally in issuing the ban. The U.S. Court of Appeals for the Ninth Circuit affirmed that ruling in late December.

It came as no surprise to Court observers that the Supreme Court would agree to review the third travel ban. The Court had previously stayed the district court’s order that halted the ban, which allowed the Trump administration to implement the ban while the legal issues are thrashed out in court.

When the Supreme Court agrees to review a case, it outlines the legal questions that will provide the framework for its decision. The parties then write and file briefs directed to those questions.

In this case, the Court ordered briefing on three questions:

  • Whether Hawaii’s challenge to the Executive Order is justiciable — meaning whether the federal courts have jurisdiction to hear a challenge to the President’s authorities to suspend the entry of aliens into the United States;
  • Whether the President exceeded his authority to suspend the entry to aliens into the United States; and
  • Whether the Executive Order violates the Establishment Clause of the U.S. Constitution.

The third question is particularly noteworthy because neither the Hawaii federal court nor the Ninth Circuit ruled on the Establishment Clause question. Both courts grounded their decisions in the language of the Immigration and Nationalization Act.

A different case challenging the third travel ban in federal district court in Maryland did reach the Establishment Clause issue. There, U.S. District Judge Theodore Chuang held that the travel ban unconstitutionally discriminated against Muslims, particularly when viewed in the context of Trump’s many anti-Muslim tweets. Chuang’s decision is on appeal to the U.S. Court of Appeals for the Fourth Circuit. That court heard oral argument on Dec. 8, 2017, but has yet to issue its decision.

On the first question, the Ninth Circuit emphatically rejected the President’s argument that he has unfettered authority to stop certain people or groups of people from entering the U.S.:

“The Government argues that the President, at any time and under any circumstances, could bar entry of all aliens from any country, and intensifies the consequences of its position by saying that no federal court — not a federal district court, nor our court of appeals, nor even the Supreme Court itself — would have Article III jurisdiction to review that matter because of the consular nonreviewability doctrine. . . . Particularly in the absence of an explicit jurisdiction-stripping provision, we doubt whether the Government’s position could be adopted without running roughshod over the principles of separation of powers enshrined in our Constitution.”

On the second question, the appeals court held that the Immigration and Naturalization Act is a comprehensive immigration statute, and Trump’s reliance on one particular section to justify the travel ban fan is in conflict with other provisions in the statutory scheme. The court also ruled that the President failed to make the kind of factual findings required under the INA — that entry of any aliens or group of aliens would be detrimental to the interests of the U.S. The Executive Order also ran afoul of the non-discrimination provision in the INA, said the court.

The Supreme Court ordered expedited briefing by the parties. The Court will hear oral argument in April.