Supreme Court Removes Travel Ban Case from Docket

The Supreme Court will no longer hear oral argument in the travel ban case—previously scheduled for October 10—for now. The Court has asked the parties to brief whether the new travel ban makes the case moot, meaning the dispute, and therefore the case, is over.

The president’s March 6 executive order 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 States.” This travel ban was set to expire on September 24.

On September 24 the President issued a presidential proclamation indefinitely banning immigration from six countries:  Chad, Iran, Libya, North Korea, Syria, and Yemen. Also, certain government officials and their families from Venezuela may no longer receive non-immigrant visas.

Two lower courts temporarily struck down the March 6 version of the travel ban which the Supreme Court was supposed to review in October. The Fourth Circuit concluded the travel ban likely violated the Establishment Clause, noting that it’s “text speaks with vague words of national security but in context drips with religious intolerance, animus and discrimination.”

The Ninth Circuit concluded that the travel ban likely exceeded the power granted to the President by Congress in the Immigration and Nationality Act because it “does not provide a rationale explaining why permitting entry of nationals from the six designated countries under current protocols would be detrimental to the interests of the United States.”

The new presidential proclamation is likely to be challenged in court like its two predecessors.

The new presidential proclamation includes two non-majority Muslim countries and discusses at length how the selected countries have “inadequate” procedures to ensure that those who pose national security or public safety risk to the United States do not enter our country.

Challengers see the addition of new countries as a thinly veiled cover to continue discriminating against Muslims and question whether a nation-focused ban on immigration can be defended under the Immigration and Nationality Act when most American terrorists are homegrown.  

The President’s March 6 executive order also suspended the Refugee Admission Program for 120 days and cut the number of refugees for fiscal year 2017. The Court asked the parties to brief whether these provisions are also moot. Fiscal year 2017 ends September 30th and suspension of the Refugee Admission Program will end October 24.