The Travel Ban: Where does it stand now?

Written By Maria C. Zumpano

 

On October 10, 2017, the United States Supreme Court vacated the Fourth Circuit Court of Appeals’ judgment in Trump v. International Refugee Assistance Project and remanded it to them to dismiss as moot. So, where does the travel ban stand now?

Background

On January 27, 2017, President Donald J. Trump issued Executive Order 13769, “Protecting the Nation from Foreign Terrorist Entry into the United States,” commonly known as the “Travel Ban.” After the Ninth Circuit blocked that Executive Order on March 6, 2017, President Trump issued Executive Order 13780, replacing the first travel ban.

The new travel ban placed a 90-day freeze on travel to the United States from six “Muslim-majority” countries and placed a 120-day suspension for admission of refugees into the United States, effective March 16, 2017. On May 25, 2017, the Fourth Circuit upheld the Maryland District Court’s decision to block the ban.

On June 1, 2017, the Department of Justice filed separate petitions with the Supreme Court of the United States to review the Fourth Circuit’s decision and to seek stay of both the Fourth Circuit’s and Ninth Circuit’s injunctions.

On June 14, 2017, to clarify confusion on when the 90-day freeze and 120-day suspension would expire, President Trump issued a memorandum declaring “the effective date of each enjoined provision to be the date and time at which the referenced injunctions are lifted or stayed with respect to that provision[,]” thus extending the freeze and suspension to September 24, 2017.

On June 26, 2017, the Supreme Court granted certiorari and granted the stay applications in part. The Supreme Court combined the Fourth Circuit and Ninth Circuit cases for oral argument, which was scheduled to take place October 10, 2017.

Update

On September 24, 2017, President Trump issued a proclamation that continued to restrict travel to the United States. President Trump stated that he “must act to protect the security and interests of the United States” and he was committed to the “ongoing efforts to engage those countries willing to cooperate, improve information-sharing and identity-management protocols and procedures, and address both terrorism-related and public-safety risks.” President Trump commended the countries that “have made strides to improve their protocols and procedures” but noted that some countries still had inadequacies that posed significant challenges. As a result, Sudan was removed from the travel ban, but Chad, North Korea, and Venezuela were added.

Consequently, the Supreme Court cancelled the arguments scheduled for October 10, 2017, because President Trump had, in essence, created another travel ban upon the expiration of the 90-day freeze.

What does the Supreme Court’s October 10 ruling mean?

The only decision provided by the Supreme Court is its grant in part of the stay requested by the Department of Justice. By the time oral arguments were set, the provisions of the travel ban had already expired, and on September 24, 2017, a new travel ban was issued. As there was no longer a “live case or controversy,” the Supreme Court deemed the challenge to the travel ban as moot. The Supreme Court has not expressed a view on the merits one way or the other about the travel ban.

What does this mean going forward?

The Supreme Court’s order did not apply to the Ninth Circuit’s case, as the 120-day suspension of the refugee program is still in effect; however, that suspension will expire on October 24, 2017, at which time it appears that it will become moot as well.

Aside from lawsuits, there are alternatives in the works to consider what limits should be placed on new persons arriving from countries that are believed to be a threat to the United States’ security.

For example, Congress is considering the following bills:

• R. 495: Protection of Children Act of 2017;

• R. 391: Asylum Reform and Border Protection Act of 2017;

• R. 2431: Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act;

• R. 3711: Legal Workforce Act; and

• 1720: Reforming American Immigration for a Strong Economy (RAISE) Act.

Considering the foregoing, however, the new travel ban is likely to be challenged until the travel ban is finally heard by the Supreme Court and decided on the merits. It is expected that challenges to President Trump’s September 24 proclamation will soon be underway. We will have to wait and see how potential lawsuits and other alternatives will play out.

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Sources Cited

Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Feb. 1, 2017).

Exec. Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017).

Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017).

Int’l Refugee Assistance Project v. Trump (Int’l Refugee I), 857 F.3d 554 (4th Cir. 2017).

Int’l Refugee Assistance Project v. Trump (Int’l Refugee II), 241 F. Supp. 3d 539 (D. Md. 2017).

Presidential Memorandum for the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence, WhiteHouse.gov, (June 14, 2017).

Trump v. Int’l Refugee Assistance Project (Trump I), 137 S. Ct. 2080 (2017).

Proclamation No. 9,645, 82 Fed. Reg. 45,161 (Sept. 24, 2017).

Trump v. Int’l Refugee Assistance Project (Trump II), No. 16-1436, 583 U.S. __ (Oct. 10, 2017) (Vacating judgment in Trump I and remanding to the Fourth Circuit to dismiss as moot).

Trump v. Int’l Refugee Assistance Project (Trump III), No. 16-1436, 582 U.S. __ (Sept. 25, 2017) (Directing the parties to file briefs addressing the September 24, 2017 Proclamation and cancelling arguments, pending further order of the Court).

Amy Howe, Justices end 4th Circuit travel-ban challenge, SCOTUSblog (Oct. 10, 2017).

Andy J. Semotiuk, America Braces For Trump’s New Expanded Immigration Travel Ban, Forbes (Sept. 24, 2017).

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