Travel Ban III: Supreme Court Reviews Travel Ban

On April 25, 2018 the Supreme Court of the United States heard oral arguments for the landmark case State Of Hawai’i And Ishmael Elshikh vs. Donald J. Trump, et al in which the State of Hawaii sued the federal government to stop the implementation of Executive Order No. 13,780. The executive order, which is titled “Protecting the Nation from Foreign Terrorist Entry into the United States.”, is President Trump’s third attempt at a travel ban and it restricts the entry of foreign nationals from 6 specified Muslim countries and two non-Muslim majority nations  (Libya, Iran, Somalia, Syria, Yemen, North Korea, Venezuela and Chad). Chad was later removed from the Travel Ban on April 11, 2018. It also suspends entrants from the United States refugee program for specified periods of time.

Travel Ban III: Update

On Friday, December 22, 2017, the Ninth Circuit Court of Appeals in Seattle affirmed in part and vacated in part the preliminary injunction order of the district court regarding the Trump Administration’s third travel ban attempt. This follows the U.S. Supreme Court’s order for a stay pending the resolution of the Ninth Circuit and Fourth Circuit appeals.

In their opinion, the judges concluded that the executive order conflicts with the Immigrant and Nationality Act’s “prohibition on nationality-based discrimination in the issuance of immigrant visas,” and that the “President’s issuance of the proclamation once again exceeds the scope of his delegated authority.”

Travel Ban III: SCOTUS Keeps Ban in Effect Pending Appeal

On December 4, 2017, the U.S. Supreme Court issued an unsigned order, granting an application for a stay, pending the hearing and resolution of the expedited appeal to the 9th circuit. This order stayed the preliminary injunction on Travel Ban III that was granted by Judge Watson in Trump v. Hawaii (WL 5987406 (U.S. 2017)).

This means that Travel Ban III will be in full effect until the Ninth Circuit decides the government’s appeal and/or when and if a petition for certiorari (i.e. a request for appeal to the Supreme Court) is filed with the Supreme Court and the Supreme Court grants the petition and decides the matter.

Travel Ban III: District Court of Hawaii

On September 24, 2017, President Trump by proclamation enacted the third iteration of the travel ban. See Declaration17 Update, Travel Ban Ill, October3, On October 17, 2017, Judge Derrick K. Watson of the District Court of Hawaii enjoined, i.e. stopped, on a nationwide basis the implementation and enforcement of the third travel ban (State v. Trump, 2017 WL 4639560 (D. Haw. Oct. 17, 2017)).

The Court held that the third travel ban suffered from the same shortcomings as the previous version – insufficient findings that “the entry of more than 150 million nationals from six specified countries would be ‘detrimental to the interests of the United States,’” and that it “plainly discriminates based on nationality in the manner that the Ninth Circuit has found antithetical to both Section 1152(a) and the founding principles of this Nation.”

Travel Ban II: SCOTUS Disposition

On October 10, 2017 the United States Supreme Court issued an unsigned order declaring that because the case of Trump, et al. v. International Refugee Assistance et al. “‘expired by its own terms’ on September 24, 2017 the appeal no longer presents a ‘live case or controversy.'” The court further stated “[f]ollowing our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss as moot the challenge to Executive Order No.13, 780.

Travel Ban II: New Administration Filing

On October 5, 2017 the Trump Administration filed a Brief asking the Supreme Court to dismiss the two cases challenging its March 6, 2017 Executive Order 13780 (Travel Ban II) on the grounds the cases are Moot.

The Plaintiffs in the two cases (Hawaii v. Trump and International Refugee Assistance Project v. Trump) urged the Court to decide the cases despite the recent changes (September 24, 2017 Proclamation) regarding travel restrictions arguing the cases are not Moot.

Travel Ban III

On Sunday September 24, 2017, President Trump amended the existing travel ban of March 6, 2017 (Executive Order 13780) by proclamation (titled “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”). This version of the travel ban attempts to address many of the issues that the courts had identified in the previous versions. Specifically, this third ban is different in that it (1) sets forth specific reasons for disallowing entry of nationals of certain countries, (2) applies different levels of scrutiny and suspension on entry to different countries, (3) provides mechanisms for countries to be added or removed from the list, (4) is indefinite in duration, (5) adds North Korea, Venezuela, and Chad while removing Sudan, and (6) provides detailed information on persons who are not covered by it, including classes of persons identified by the Supreme Court.

This travel ban version may moot the legal challenge to E.O. 13780. The Supreme Court has already cancelled the scheduled October oral argument and asked the parties to submit briefs by October 5, 2017, addressing “whether or to what extent the proclamation may render the case moot.” The Supreme Court also asked for briefings on the suspension of the nation’s refugee program, which is not addressed in the proclamation and is scheduled to expire in October, as to whether that issue would soon be moot.