Travel Ban Headed to the Supreme Court?

The Department of Justice (DOJ) has filed a brief asking the Supreme Court to review the Fourth Circuit’s recent decision temporarily preventing the President’s revised travel ban from going into effect. Numerous states supported both side as amici in the litigation. Numerous local goverments supported the challengers.

The President’s first executive order prevented people from seven predominately Muslim countries from entering the United States for 90 days. The Ninth Circuit temporarily struck it down concluding it likely violated the due process rights of lawful permanent residents, non-immigrant visa holders, and refugees.

The President’s second executive order prevents people from six predominately Muslim countries from entering the United States for 90 days but only applies to new visa applicants and allows for case-by-case waivers.  

The First Amendment Establishment Clause prevents the government from preferring one religion over another. To that end, laws must have a secular purpose.

The Fourth Circuit concluded the revised travel ban likely violates the Establishment Clause noting that its “text speaks with vague words of national security but in context drips with religious intolerance, animus, and discrimination.”

At the center of the debate in this case is how much attention, if any, courts should give to statements made by candidate Trump and President Trump and others in the administration about Muslims generally and the executive orders specifically. In terms of considering these statements the Fourth Circuit said: “We cannot shut our eyes to such evidence when it stares us in the face.”

DOJ’s brief points out that the Fourth Circuit didn’t dispute that “the President acted at the height of his powers” in instituting the revised travel ban and that its text is religion-neutral. It also points out that the challenger’s concede that it “could be constitutional if issued by some other President.” DOJ argues the Fourth Circuit’s holding that the revised travel ban is likely unconstitutional because the President’s stated national security interest “was provided in bad faith, as a pretext for its religious purpose” is “remarkable” and “wrong.”

DOJ has also asked the Supreme Court to stay a preliminary injunction of the revised travel ban issued by a federal district court in Hawaii until the Ninth Circuit rules and to continue the stay if the Ninth Circuit rules against the United States.

The Hawaii judge reasoned that “a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequences of events leading to its issuance” would conclude the revised travel ban was intended to disfavor Muslims despite its “stated, religiously neutral purpose.” More specifically, the court relied on numerous statements made by the President himself indicating he wanted a “Muslim ban.”

The Hawaii district court ruling is broader than the Fourth Circuit’s ruling in that it also blocked the suspension the Refugee Admission Program for 120 days and the cut to the number of refugees in fiscal year 2017.

Supreme Court review of a case is discretionary. Only time will tell if and when the Supreme Court decides to get involved in the travel ban litigation.