Update: Travel Ban Injunction Appealed to U.S. Supreme Court

The Administration has requested that the U.S. Supreme Court lift the current injunctions against implementation of its "travel ban" while lower courts are deciding the legality of Executive Orders promulgated this winter. Those Executive Orders sought to temporarily ban citizens from six Muslim-majority countries, suspend the US Refugee Admissions Program (USRAP), and lower the ceiling from 110,000 to 50,000 refugees in FY2017. Most recently, by a 10-3 margin, the U.S. Court of Appeals for the Fourth Circuit upheld a lower court decision, resoundingly declaring the Executive Orders as "speak[ing] with vague words of national security, but in context, drip[ping] with religious intolerance, animus, and discrimination." The U.S. Court of Appeals for the Ninth Circuit is considering a similar case but has not yet ruled.

The government raises two basic questions with the U.S. Supreme Court:

  1. Did lower courts err in looking to both pre- and post-Inaugural statements by the then-candidate and his surrogates to determine the action is, in fact, a "Muslim ban" and not a requirement of national security?

  2. Do the President's legal powers, generally, to set immigration policy override any potential negative effects to the litigants?

The Supreme Court is asked both to set aside the Fourth Circuit ruling and accept the case for review, and, simultaneously, to lift the nationwide injunction imposed by a Hawaii court (under review in the Ninth Circuit) in the interim.

The procedural posture of the appeal is tricky, as it is very late in the the Supreme Court term and the travel ban is intended to be only temporary. The Court could respond in a variety of ways, which include, among others:

  1. Nothing.

  2. Agree to hear the case but not lift the injunction. This requires a vote of four justices. The case would likely be heard in the fall with a decision sometime next year.

  3. Agree to hear the case AND lift the injunction in the interim. This requires a vote of five justices and presumes that the Administration would prevail on the merits.

  4. Provide some relief and ask the Administration to develop a plan. (The Executive Order presumptively intended this during the 90-day ban; however, the Hawaii injunction purportedly precludes that effort now.)

It is likely that International Refugee Assistance Project (IRAP) and HIAS, MFA Participating Organizations and the litigants in the Fourth Circuit, will be asked to respond to the government's filing.

Source: "Here are 4 Ways the Supreme Court Might Handle Trump's Travel Ban," New York Magazine, June 2, 2017.


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