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An introduction to the travel ban: In Plain English

In December 2015, the presidential campaign of then-candidate Donald Trump issued a statement calling for “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what’s going on.” Trump’s statement continued: “Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victim of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life.” Fifteen months later, on March 6, 2017, citing national security concerns, President Trump signed an executive order that ordered a freeze on new visas for travelers from six Muslim-majority countries and suspended travel by refugees into the United States. Two federal appeals courts blocked the Trump administration from implementing the ban, but on June 26 the Supreme Court stepped in. The justices not only agreed to review the lower courts’ rulings in October, when they return from their summer break, but they also allowed the federal government to put at least part of the ban into effect until they can rule on the federal government’s appeals.

Trump’s March 6 order was not the administration’s first effort to restrict travel to the United States by visitors from predominantly Muslim countries. On January 27, Trump signed an order that barred citizens from seven such countries – Iraq, Syria, Sudan, Iran, Somalia, Libya and Yemen – from entering the country and suspended the refugee program. That order led to confusion around the world, with some travelers stranded in airports after they were denied entry to the United States and others prevented from boarding planes overseas. The order also prompted legal challenges, and on February 3 a federal district judge in Seattle temporarily blocked the government from enforcing the order. Six days later, a federal appeals court left that ruling in place.

Shortly after the appeals court’s ruling, Trump took to Twitter, with a message that seemed to promise an imminent appeal to the Supreme Court: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” But that appeal never came. Instead, on March 6, the president signed a new executive order that in many ways resembled its predecessor: It suspended both refugee admissions and travel to the United States for citizens of six of the seven predominantly Muslim countries covered by the January 27 order (removing Iraq from the list). But the second order did not contain the first order’s preference for religious minorities seeking to come to the United States as refugees, nor did it ban – as the first order did – Syrian refugees indefinitely.

Like the first executive order, the second order was quickly challenged in court. On May 25, the U.S. Court of Appeals for the 4th Circuit upheld a ruling by a federal district court from Maryland that barred the Trump administration from implementing the March 6 order. The 4th Circuit stated that the order violated the Constitution’s establishment clause, which (among other things) prohibits the government from favoring one religion over another. Pointing to statements made by Trump both as a candidate for the presidency and while in office, the court of appeals concluded that the order was intended to discriminate against Muslims, even if it did not say so specifically.

A few weeks later, on June 12, the U.S. Court of Appeals for the 9th Circuit also upheld a federal district court’s ruling – this time, from Hawaii – putting the executive order on hold. The 9th Circuit did not address whether the travel ban violates the establishment clause; instead, it ruled, the order cannot go into effect because it exceeds the president’s power, given to him by Congress, to regulate immigration.

This time, the Trump administration did ask the Supreme Court to intervene, both by reviewing the two lower-court rulings and by allowing the executive order to go into effect until it could hear oral argument and rule on the dispute. On June 26, the justices announced that they would indeed weigh in, with new briefing over the summer and oral argument when they return from their summer recess in October. And the justices took a middle ground on what should happen with the order during that time: In a brief and unsigned opinion, they allowed the Trump administration to put the order into effect, at least for travelers to the United States who don’t already have some connection to the country.

There are likely to be two main points of contention before the court when the justices hear oral argument in the fall. The first is whether, as the 4th Circuit held, the March 6 order violates the Constitution’s establishment clause. In the government’s view, it does not. The Supreme Court’s earlier cases, along with the need for courts to accord respect to a separate branch of government, the government contends, bar courts from blocking the executive order when it did not, on its face, discriminate against any specific religion but instead rested on the president’s determination that it was necessary to protect national security. Indeed, the government stresses, the 4th Circuit’s decision was “the first to hold that a provision of federal law—neutral on its face and in operation—violates the Establishment Clause based on speculation about its drafters’ supposedly illicit purpose.” And even if there were cases in which it would be appropriate for courts to consider more than just the text of the order and how it works to discern the order’s “true” purpose, the government adds, courts should not look to statements made by a candidate while campaigning, because ideas suggested during the campaign may well change once the candidate is elected and sees a need to do things differently.

The challengers counter that the 4th Circuit’s ruling that the order violates the establishment clause is completely consistent with the Supreme Court’s earlier case law. The Supreme Court, they emphasize, “has never held that courts must close their eyes to affirmative evidence that the executive branch has acted with an unconstitutional purpose.” This is particularly true, they continue, when ascertaining the purpose of this order does not require “judicial psychoanalysis”: There is, they say, an “extraordinary volume of publicly available, undisputed evidence that the Order was intended to disfavor Muslims.”

The federal government argues that the 9th Circuit’s conclusion that the executive order went beyond the president’s authority under federal immigration laws was “even more novel and extraordinary” than the 4th Circuit’s ruling that the order violates the Constitution. The government explains that federal law gives the president “exceedingly broad discretion” to suspend visas for foreigners when he believes that allowing them to enter the United States would be “detrimental” to the country’s interest. But it does not require, as the 9th Circuit ruled, the president to make specific factual findings to that effect. Indeed, the federal government points out, presidents have historically suspended the entry of foreigners for decades. And in any event, the government notes, the order makes “extensive findings” concerning the national-security risks the six countries covered by the order present.

The challengers characterize the government’s position as amounting to “unilateral and practically limitless immigration power” for the president. Although courts can certainly defer to a president’s determination regarding the relationship between immigration and national security, they contend, deference does not foreclose meaningful judicial review; it is exactly the job of the courts, they argue, to evaluate whether the president’s actions violate the Constitution. Moreover, although the Trump administration has argued that the freeze on refugees and travelers from the six predominantly Muslim countries is necessary to give government officials time to review the procedures that they use to vet applicants, the government has already had plenty of time to conduct such a review.

The two issues relating to the establishment clause and the president’s authority to issue the order are the main points of contention in the litigation, but at least two other questions could affect whether the justices reach those key issues at all. The first question is whether the challengers have a legal right to contest the executive order. The lower courts concluded that at least some of the individuals challenging the order have that right, for two reasons: The plaintiffs have relatives who want to travel to the United States but would be barred from doing so under the order, and the order is effectively a “state-sanctioned message condemning [their] religion and causing [them] to feel excluded and marginalized.” As for the state of Hawaii, which is also a plaintiff in one case, the 9th Circuit agreed that it could sue the government because the order would (among other things) prevent students and faculty from coming to the state’s university. But the Trump administration disputes both of these conclusions.

The second potential sticking point is whether the challenges to the provision that suspends entry for travelers from the six countries are still ongoing disputes. The challengers in the 4th Circuit case had told the justices that the provision would expire on June 14, 2017, because the order stated that the bar on travelers and refugees would apply for a 90-day period – beginning on March 16, when the order went into effect, and ending on June 14. However, on June 14, Trump amended the order, making clear that the bar would go into effect when the lower-court orders blocking its implementation had been lifted. When they granted review, the justices specifically asked both the government and the challengers to address this question in their briefs.

Under the Supreme Court’s rules, the federal government’s opening brief is due in early August, with the challengers’ briefs to follow in mid-September. But litigation in the lower courts has continued, as the two sides argue over what exactly the Supreme Court meant when it barred the government from enforcing the order against travelers who have a “close” relationship with people or institutions within the United States. In guidance issued shortly after the Supreme Court’s June 26 order, the federal government indicated that relatives such as parents, spouses, children and siblings will qualify as “close” relatives, but the government did not include other relatives – such as grandparents, grandchildren, nieces, nephews, aunts and uncles – in its definition. It’s not clear whether this dispute will make it to the Supreme Court before October’s oral argument, but it certainly could.

Recommended Citation: Amy Howe, An introduction to the travel ban: In Plain English, SCOTUSblog (Jul. 10, 2017, 1:19 PM),