Justices to review travel ban challenge

The Supreme Court will hear oral argument on the challenge to President Donald Trump’s September 24 order, the latest version of what is often known as his “travel ban,” which limited travel from eight countries: Libya, Iran, Somalia, Syria, Yemen, North Korea, Venezuela and Chad. The announcement, which came in a brief order today, had been widely expected since last month’s ruling in the case by the U.S. Court of Appeals for the 9th Circuit, which upheld a federal district court decision blocking the government from implementing the September 24 proclamation.

Today’s order marks the second time that the justices have agreed to weigh in on challenges to the travel ban. In June 2017, they granted the government’s request to review two challenges to an earlier version of the ban, announced in a March 6 executive order. Oral argument was scheduled for early October, and the court permitted the government to implement the ban –at least for would-be travelers who didn’t already have some connection to the United States – until it could rule on the dispute. But that case disappeared from the court’s argument calendar in late September after Trump issued the current version of the order.

Hawaii returned to the lower courts to challenge the September 24 order, arguing that – like its predecessors – it violated both federal law and the U.S. Constitution. The state prevailed, prompting the Trump administration to go to the Supreme Court.

In a brief filed just two weeks ago, the federal government told the justices that the most recent version of the ban is different from earlier iterations. The earlier orders, it explained, were “premised on uncertainty about the adequacy of other governments’ information-sharing,” while the current version responds to “specific findings that a handful of countries have deficient information-sharing practices or other factors that prevent the government from assessing the risk their nationals pose to the United States.” By barring the president from excluding nationals from those countries, the Trump administration warned, “the courts below have overridden the President’s judgments on sensitive matters of national security and foreign relations, and severely restricted the ability of this and future Presidents to protect the nation.”

Hawaii responded seven days later, urging the Supreme Court to stay out of the dispute. The state characterized the September 24 order as a “direct descendant” of the earlier versions, emphasizing that the most recent order “continues to ban all immigration from five of the six overwhelmingly Muslim countries covered by” the March 6 order while imposing only “token restrictions” on two non-Muslim-majority countries. The state emphasized that the 9th Circuit’s decision “did not question ‘the President’s judgments on sensitive matters of national security’ or ‘restrict’ the sphere of the President’s authority beyond the limits recognized by every prior Administration.” Instead, the state wrote, the lower-court ruling merely “vindicated the judicial role, by ensuring that the President adheres to the limits on his authority that the People and their representatives have imposed.”

In granting the government’s petition, the justices agreed to consider the three questions presented by the Trump administration: Whether courts can review a challenge to the September 24 order at all; whether the order falls within the president’s authority over immigration; and whether the district court’s order applies too broadly. They also agreed to take up a fourth question, broached by Hawaii: whether the September 24 order violates the Constitution’s establishment clause, which (among other things) bars the government from favoring one religion over another. The 9th Circuit did not rule on the establishment clause question, but it is one of the issues raised in another challenge to the September 24 order, which is currently pending in the U.S. Court of Appeals for the 4th Circuit. The 4th Circuit heard oral argument in that case on December 8 but has not yet issued its decision.

In its brief opposing review, Hawaii suggested that, if the court did grant the government’s petition, oral argument should be scheduled for the court’s March sitting, which begins on March 19. Today’s order did not specifically address scheduling or instruct the two sides to proceed on an expedited basis, so the more likely scenario is that the case will be argued during the sitting that begins on April 16. No matter when the oral argument takes place, a decision is likely to follow in late June.

This post was originally published at Howe on the Court.