Is the Third Travel Ban Likely to be Reviewed by the Supreme Court?

If Attorney General Jeff Sessions has his way the answer will be yes he told the Senate Judiciary Committee shortly after two federal district courts temporarily prevented the third travel ban from going into effect.

The president’s March 6 executive order (the 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.

The second travel ban was set to expire on September 24. That day the President issued a presidential proclamation (the third travel ban) indefinitely banning immigration from six countries:  Chad, Iran, Libya, North Korea, Syria, and Yemen. Persons from some of these countries and Venezuela also may not receive particular non-immigrant visas. Following the presidential proclamation the Supreme Court dismissed the case challenging the second travel ban.

Shortly before the third travel ban was supposed to go into effect federal district courts in Hawaii and Maryland issued temporary injunctions blocking it.

The Immigration and Nationality Act (INA) allows the President to prevent “entry of a class of aliens into the United States [that] would be detrimental to the interests of the United States” but only if the President is able to articulate “findings support the conclusion” that allowing entry to such persons “would be harmful to the national interest.” The third travel ban indefinitely suspended people coming from countries identified as having “inadequate identity-management protocols, information sharing practices, and risk factors.”

The federal district court in Hawaii opined that the travel ban doesn’t support the conclusion that all nationals banned from the particular countries “would be harmful to the national interest.” It makes “no finding that nationality alone renders entry of this broad class of individuals a heightened security risk to the United States.” More specifically, it “does not tie these nationals in any way to terrorist organizations within the six designated countries,” find them “responsible for insecure country conditions,” or provide “any link between an individual’s nationality and their propensity to commit terrorism or their inherent dangerousness.”

While the INA allows the President to exclude classes of harmful aliens it also doesn’t allow discrimination on the basis of national origin in the issuance of immigrant visas. To the extent these two provisions contradict, the Maryland federal district court concluded that the latter provision controls. It was adopted later than the first provision and is more specific.   

The Maryland court also concluded the travel ban likely violates the Establishment Clause because it “does not abandon this fundamental approach [of excluding persons from multiple majority-Muslim countries], but rather doubles down on it, because rather than imposing a temporary, 90-day travel ban, the Proclamation establishes an indefinite travel ban.”

While both courts issued nationwide injunctions the scope of the Maryland injunction is narrower; it only applies to those with a “bona fide relationship with a person or entity in the United States.” Neither court applied the injunction to North Korea or Venezuela.

Both of these case are likely to be appealed to federal courts of appeals before the Supreme Court. Supreme Court review is discretionary. But the fact the Court agreed to hear legal challenges to the second travel ban indicates it will probably hear a challenge to the third travel ban if asked.