High court lets travel ban take effect
Ruling puts no limits on Trump order, applies until legal challenges resolved
WASHINGTON — The Supreme Court on Monday allowed the third version of President Donald Trump’s travel ban to go into effect while legal challenges against it continue.
The court’s brief, unsigned orders Monday urged appeals courts to move swiftly to determine whether the latest ban was lawful. Justices Ruth Bader Ginsburg and Sonia Sotomayor said they would have denied the administration’s request to allow the latest ban to go into effect.
The court’s orders mean that the administration can fully enforce its new restrictions on travel from eight nations, six of them predominantly Muslim. For now, most citizens of Iran, Libya, Syria, Yemen, Somalia, Chad and North Korea will be barred from entering the United States, along with some groups of people from Venezuela.
The new orders apply for the remainder of the appeals process, including possible Supreme Court review.
The restrictions vary in their details, but in most cases, citizens of the countries will be unable to emigrate to the United States permanently and many will be barred from working, studying or vacationing here.
Iran, for example, will still be able to send its citizens on student exchanges, though such visitors will be subject to enhanced screening. Somalis will no longer be allowed to emigrate to the United States but may visit with extra screening.
The Supreme Court’s orders effectively overturned a compromise in place since June, when the court said travelers with connections to the United States could continue to travel here notwithstanding restrictions in earlier versions of the ban.
Now, those relationships will no longer provide a blanket exemption from the ban, although visa officials can make exceptions on a caseby-case basis.
The justices offered no explanation for their order, but the administration had said that blocking the full ban was causing “irreparable harm” because the policy is based on legitimate national security and foreign policy concerns.
White House spokesman Hogan Gidley said the White House is “not surprised by today’s Supreme Court decision permitting immediate enforcement of the President’s proclamation limiting travel from countries presenting heightened risks of terror-
ism.” Speaking to reporters traveling with Trump on Air Force One, Gidley said, “The proclamation is lawful and essential to protecting our homeland.”
Attorney General Jeff Sessions, in a statement, called the court’s orders “a substantial victory for the safety and security of the American people.”
Opponents of this and previous versions of the ban say they show a bias against Muslims. They say that was reinforced most recently by Trump’s retweets of anti-Muslim videos.
“President Trump’s anti-Muslim prejudice is no secret. He has repeatedly confirmed it, including just last week on Twitter. It’s unfortunate that the full ban can move forward for now, but this order does not address the merits of our claims,” said Omar Jadwat, director of the American Civil Liberties Union’s Immigrants’ Rights Project. The ACLU is representing some opponents of the ban in a Maryland case.
Hawaii Attorney General Doug Chin, who is pressing the other case against the ban, tweeted that “we agree a speedy resolution is needed for the sake of our universities, our businesses and most of all, for people marginalized by this unlawful order.”
David Levine, a University of California Hastings law school professor, said that by allowing the ban to take effect just days before the appeals court arguments, the justices were signaling their view.
“I think it’s tipping the hand of the Supreme Court,” Levine said. “It suggests that from their understanding, the government is more likely to prevail on the merits than we might have thought.”
GOVERNMENT’S DEFENSE
In a pair of filings in the Supreme Court, Solicitor General Noel Francisco said Trump had acted under his broad constitutional and statutory authority to control immigration when he issued a proclamation in September announcing the new travel restrictions.
Francisco wrote that the process leading to the proclamation was more deliberate than those that had led to earlier bans, issued in January and March. Those orders were temporary measures, he wrote, while the proclamation was the product of extensive study and deliberation.
Lawyers with the ACLU told the justices that little had changed. “The proclamation is the third order the president has signed this year banning more than 100 million individuals from Muslim-majority nations from coming to the United States,” they wrote.
In October, federal judges in Maryland and Hawaii blocked major parts of the latest ban while legal challenges proceed.
“A nationality-based travel ban against eight nations consisting of over 150 million people is unprecedented,” wrote Judge Theodore Chuang of the U.S. District Court in Maryland. Citing statements from Trump, some made as a presidential candidate and some more recent, Chuang found that the new proclamation was tainted by religious animus and most likely violated the Constitution’s prohibition of government establishment of religion.
Similarly, Judge Derrick Watson of the U.S. District Court in Honolulu found that the September proclamation “suffers from precisely the same maladies as its predecessor,” adding that it “plainly discriminates based on nationality” in violation of federal law “and the founding principles of this nation.”
Chuang limited his injunction to exclude people without “a credible claim of a bona fide relationship with a person or entity in the United States,” quoting from a Supreme Court order issued in June concerning the second travel ban. Watson did not impose such a limitation, but an appeals court modified his injunction, also quoting the Supreme Court’s language.
All the rulings so far have been on a preliminary basis. The San Francisco-based 9th U.S. Circuit Court of Appeals and the 4th U.S. Circuit Court of Appeals in Richmond, Va., will be holding arguments on the legality of the ban this week.
Both appeals courts are dealing with the issue on an accelerated basis, and the Supreme Court noted that it expects those courts to reach decisions “with appropriate dispatch.”
Lawyers for Hawaii told the justices that there was no reason to make changes now.
“Less than six months ago, this court considered and rejected a stay request indistinguishable from the one the government now presses,” they wrote. “But the justification for that dramatic relief has only weakened. In place of a temporary ban on entry, the president has imposed an indefinite one, deepening and prolonging the harms a stay would inflict.”
Francisco asked the justices to allow every part of the third ban to go into effect. The second version of the travel ban, he wrote, “involved temporary procedures before the review was conducted and in the absence of a presidential determination concerning the adequacy of foreign governments’ information-sharing and identity-management practices.”
“Now that the review has been completed and identified ongoing deficiencies in the information needed to assess nationals of particular countries,” he wrote, “additional restrictions are needed.”