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Government responds in travel ban litigation

This morning the Trump administration responded to yesterday’s brief by the state of Hawaii, which urged the justices to stay out of the dispute over the March 6 executive order, often known as the “travel ban,” which put a hold on visas for travelers from six Muslim-majority countries. Although Hawaii argued yesterday that a June 14 memorandum by the president instructing federal agencies to begin a review of the procedures used to vet and approve visa applications undermined the rationale for the travel ban and eliminated any need for the Supreme Court to step in, today the federal government attempted to refocus the debate. Supreme Court review of the lower-court decisions blocking the travel ban is essential, the government argued, because those decisions interfere with the president’s determination that the travel ban is necessary to protect the national security of the United States.

In yesterday’s filing, Hawaii contended that the June 14 memorandum demonstrated that the travel ban is no longer necessary. The provisions of the president’s March 6 executive order requiring the government to review its procedures for vetting visa and refugee applications – the justification for the ban – will go into effect at the end of this week, but the visa and refugee programs themselves remain on hold until the lower courts’ orders are lifted. Because the government’s review will almost certainly have been completed by the fall, when the justices would hear oral argument in the travel-ban litigation, the rationale underlying the ban will no longer exist, and therefore there is no need for the Supreme Court to weigh in on the ban’s legality.

The government counters that, to the extent there is any “disconnect” between the different provisions of the travel ban, there is an easy way to remedy it: Allow the whole executive order to go into effect, so that the freeze on visas and refugees “can operate in tandem with the parallel reviews, just as the Order envisions.” The government also maintains that other arguments against Supreme Court review are contradictory at best, because the state is arguing both that the government should have moved faster to bring the dispute to the Supreme Court and that the case still isn’t ready for the justices to step in. The important point is that the “government has moved this case through the courts with urgency and care at every stage.”

The government closes its brief by imploring the justices both to review the lower-court decisions putting the ban on hold and to allow the ban to go into effect while they conduct that review. But at the very least, the government suggests, the justices should substantially narrow the scope of the lower court’s order blocking the implementation of the ban so that it applies to only a few people – specifically, the mother-in-law of a Hawaii man who is challenging the ban and any students from the affected countries who plan to attend school in Hawaii. The justices will consider all of these requests at their private conference tomorrow and could announce their decision as early as next week.

Recommended Citation: Amy Howe, Government responds in travel ban litigation, SCOTUSblog (Jun. 21, 2017, 4:49 PM),