travel ban

One of the questions the Supreme Court may decide in Trump v. Hawaii is whether lower federal courts have the authority to provide injunctive relief that benefits non-parties as well as the party asking for relief. The State and Local Legal Center (SLLC) filed an amicus brief arguing in favor of lower federal courts authority to issue injunctive relief that benefits non-parties.

In this case Hawaii, the Muslim Association of Hawaii, and three individuals sued President Trump claiming the third travel ban, which indefinitely prevents immigration from six countries:  Chad, Iran, Libya, North Korea, Syria, and Yemen, was illegal and unconstitutional.

While the Supreme Court has agreed to review the constitutionality and legality of the third travel ban, the Fourth Circuit has joined the Ninth Circuit in striking it down. The Fourth Circuit concluded it likely violates the Establishment Clause because its primary purpose is to discriminate against Muslims.

Per a December 2017 Supreme Court order, the third travel ban is currently in effect regardless of the Ninth and Fourth Circuit rulings.    

On September 24, 2017, President Trump issued a presidential proclamation (the third travel ban) indefinitely banning immigration from six countries:  Chad, Iran, Libya, North Korea, Syria, and Yemen. Lawsuits were brought immediately in the Ninth and Fourth Circuits.

In Trump v. Hawaii the Ninth Circuit temporarily struck down President Trump’s third travel ban. The Supreme Court has agreed to review the Ninth Circuit decision.

An opinion in this case should be issued no later than the end of June 2018. Per a Supreme Court order issued in December 2017, the third travel ban is currently in effect regardless of the Ninth Circuit ruling.    

The Court has agreed to decide four issues. First, whether the case is justiciable, meaning whether the legal issues are “fit for review.” Second, whether the third travel ban exceeds the President’s authority under the Immigration and Nationality Act (INA). Third, whether the Ninth Circuit nationwide injunction was overbroad. Fourth, whether the travel ban violates the Establishment Clause.

The Ninth Circuit opinion temporarily striking down President Trump’s third travel ban was met with little fanfare likely for two reasons. The decision came down right before Christmas (December 22). And in early December the Supreme Court allowed the third travel ban to go into effect until the Supreme Court rules on it, even if the Ninth Circuit (or Fourth Circuit) were to strike it down in the meantime.   

The Supreme Court has allowed the third travel ban to go into effect at least temporarily while two federal circuit courts of appeals review decisions from lower courts temporarily blocking enforcement of the travel ban. Even if the government loses before the appeals courts the travel ban will remain in effect until the Supreme Court rules on it or refuses to rule on it (unless the government doesn’t appeal to the Supreme Court).

The president’s second travel ban prevented people from six predominately Muslim countries from entering the United States for 90 days. In June the Supreme Court temporarily prevented it from going into effect against those with a “bona fide relationship with a person or entity in the United State” until the Court could hear the case on the merits in early October.

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