Supreme Court Will Decide Whether Trump's Ban on Travel From Majority Muslim Countries Is Permissible

Third version of Trump travel ban in effect until Supreme Court decides.

** LEGAL UPDATE **

The U.S. Supreme Court has agreed to decide whether the U.S. Court of Appeals for the Ninth Circuit was wrong when it found that the third version of President Trump’s travel ban was impermissible. The travel ban remains in effect as a result of an earlier Supreme Court decision to strike temporary restraining orders issued by district court judges.

A separate challenge to the travel ban remains on appeal to the Fourth Circuit. Regardless of the outcome of that litigation, the Supreme Court is likely to agree to review the Fourth Circuit decision. Depending on how and when the Fourth Circuit rules, the case may be consolidated with the Ninth Circuit case.

When we last updated Nolo readers on the status of the travel ban, district court judges in the Ninth and Fourth Circuit cases had issued temporary restraining orders (TROs) that blocked implementation of the travel ban in certain respects while the circuit courts heard challenges to the ban. The government wanted the travel ban to go into effect while the cases were pending, so it asked the Supreme Court to “stay” (essentially kill) the TROs.

By a 7-2 vote, the Supreme Court did just that. The travel ban will remain in effect until the litigation is concluded.

A few weeks later, the Ninth Circuit issued its decision on the merits of the travel ban. It held that the travel ban exceeded the scope of the authority delegated to the president under the federal Immigration and Nationality Act (I.N.A.), the ban conflicts with the I.N.A.’s prohibition on nationality-based discrimination in the issuance of immigrant visas, and the president has no other source of constitutional authority to issue the travel ban. The Ninth Circuit would enjoin (prohibit) enforcement of certain sections of the executive order announcing the travel ban, but only extend its protection to foreign nationals who have a bona fide relationship with a person or entity in the United States.

Not satisfied with the Ninth Circuit decision, the government asked the Supreme Court to review it, and the Supreme Court agreed to do so. The Court wants the parties to brief (prepare written arguments on) four issues:

  1. whether the challenge to the travel ban is “justiciable,” meaning is it a case that the courts can even decide, or is the travel ban something the president can do without court interference
  2. whether the travel ban is a lawful exercise of the president’s authority under the I.N.A. or other law
  3. whether the Ninth Circuit’s injunction is “overbroad,” meaning does it stop the government from doing things that are permissible even though other things aren’t, and
  4. whether the travel ban is unconstitutional because it violates the Establishment Clause, which says that the government can’t favor one religion over others.

The Supreme Court wanted the Fourth Circuit to make its ruling quickly, like the Ninth Circuit did, but so far the Fourth Circuit has not done so.

It is likely that the Supreme Court will wait to see whether the parties ask for review of the Fourth Circuit’s opinion after it comes out before hearing arguments or issuing a decision in the Ninth Circuit case. The issues on review are bound to be similar, and it would be more economical to resolve the travel ban challenges with a single decision.

Effective Date: January 19, 2018