Travel Ban: “Muslim travel ban” update

On May 25, 2017, the U.S. Court of Appeals for the Fourth Circuit, in a 10-3 decision, affirmed the preliminary injunction that had been entered by the U.S. District Court for the District of Maryland (Int’l Refugee Assistance Project v. Trump, 2017 WL 1018235 (D. Md. Mar. 16, 2017)) against the second “Muslim travel ban” Executive Order (E.O. 13780). The chief judge summarized that the question before the court was:

“whether the Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120, 18 L.Ed. 281 (1866), remains “a law for rulers and people, equally in war and in peace.” And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation. Therefore, for the reasons that follow, we affirm in substantial part the district court’s issuance of a nationwide preliminary injunction as to Section 2(c) of the challenged Executive Order.”

Int’l Refugee Assistance Project v. Trump, 2017 WL 2273306, at *1 (4th Cir. May 25, 2017), as amended (May 31, 2017)

On June 1, 2017, the acting Solicitor General, on behalf of Donald Trump and others, filed a Petition for Certiorari asking the Supreme Court of the United States to review the Fourth Circuit’s decision. The Solicitor General also requested that the Supreme Court stay the decision of the Fourth Circuit. The Supreme Court has not yet stated whether it will grant certiorari, but has asked the parties to file responses by June 12, 2017.