Trump's travel ban in court (again), but with a difference
Will the third time be the charm for the Trump administration?
An almost constant feature of Donald Trump鈥檚 presidency has been litigation over his trio of travel-ban executive actions, which restrict entry into the US for certain classes of immigrants from six Muslim-majority countries.
The travel ban has also become the primary battleground for larger debates over how the judicial system should respond to a presidency that听has defied governmental orthodoxy in numerous ways.
The administration has framed the executive actions as tightening immigration policies to prevent potentially dangerous individuals from entering the country. For litigants 鈥� who have included national civil rights and immigrant advocacy groups, state governments, universities, and individuals around the country 鈥� the executive actions represent a thinly veiled attempt to implement the 鈥淢uslim ban鈥� Trump promised during his presidential campaign.
Plaintiffs have consistently argued听that the executive actions violate both congressional immigration law and the Constitution. Lower courts, for the most part, have agreed.
Yet a definitive ruling on these issues has eluded the courts so far, in part because the first two executive actions were temporary. In an , the US Supreme Court allowed portions of the second order to go into effect, and set a date for arguments. When that 90-day ban expired, Trump issued a third iteration of the ban (set to go into effect Wednesday) and the high court dropped the earlier case. Since this third travel ban is indefinite, legal challenges to it 鈥� which began Monday afternoon with oral arguments in a federal district court in Maryland 鈥� are certain to deliver a resolution to at least some of these issues, potentially even by the end of this year鈥檚 Supreme Court term. 听
The arguments against all three versions of the travel ban have remained largely the same, despite shifting provisions the orders (described in a postscript below). Plaintiffs argue that the third travel ban, like its predecessors, violates the 1965 Immigration and Nationality Act (INA), which prohibited discrimination against immigrants on the basis of nationality. They also argue that it discriminates based on religion.
Beyond that,听the litigation over the past 10 months has provoked a discussion over whether courts should treat Trump differently from previous presidents. Specifically, the judiciary has traditionally given broad deference to the executive branch on immigration and national security matters. For the Trump administration, the judiciary has given more scrutiny.
鈥淲e are in the second chapter of that,鈥� says Muzaffar Chishti, director of the Migration Policy Institute鈥檚 New York office. 鈥淭here was some need for these courts to react to the Trump presidency鈥� Will they react the same way nine months later as they reacted three months later?鈥�
听
The arguments that started Monday are being heard by the same person, US District Judge Theodore G. Chuang, who blocked portions of the second travel ban order in March. It鈥檚 common practice for judges to hear cases concerning issues they鈥檝e reviewed before.
For this case, the government that the context around the new travel ban has changed enough to render it both constitutional and permissible under the INA.
Over the summer, the administration conducted a multi-agency global review of security risks posed by various countries 鈥� a review that saw Sudan dropped from the list of banned countries while adding Chad and two nations that do not have Muslim majorities, North Korea and Venezuela. The review, the government argued in its brief, 鈥渟evers any connection between [the second travel ban鈥檚] supposed religious purpose and鈥� the third travel ban.
The national-security argument
The third travel ban also doesn鈥檛 run afoul of the INA, the government claims, because 鈥淐ongress has set the minimum requirements for an alien to gain entry, but has also granted the President authority to impose additional restrictions when he deems appropriate.鈥� Siding with the plaintiffs, the government added, 鈥渨ould severely circumscribe the President鈥檚 authority鈥� and 鈥渢hreatens the ability of this or any future President to take steps that are necessary to protect the Nation.鈥�
Indeed, the government鈥檚 central argument is that the national security issues at play are beyond the court鈥檚 purview. Once the administration has shown that national security interests animated the travel restrictions 鈥� interests determined by the global review 鈥� the courts have no authority to look behind a presidential order restricting the entry of certain classes of immigrants.
Looking behind Trump鈥檚 executive orders was something the lower courts did routinely in prior travel ban cases. None of the three travel bans explicitly mentioned Muslims, but judges regularly cited statements from Trump and his surrogates 鈥� both during and after the campaign 鈥� as evidence that they were attempts to establish a de-facto 鈥淢uslim ban.鈥� A panel of judges on the 4th Circuit Court of Appeals, who heard a challenge to Judge Chuang鈥檚 first ruling, 听that the second travel ban order 鈥渄rips with religious intolerance, animus, and discrimination鈥� in siding against the government.
Although the Supreme Court vacated that 4th Circuit opinion, that court鈥檚 reasoning could still have significant sway over Judge Chuang鈥檚 reading of the third travel ban, says Steven Schwinn, a professor at the John Marshall School of Law in Chicago.
鈥淵ou just cannot wipe clean the religious animus,鈥� he says. Chuang isn鈥檛 mandated to follow the 4th Circuit ruling because it was vacated, but 鈥渉e can certainly adopt the same reasoning.鈥�
The fact that the third travel ban is indefinite, unlike the previous two versions, could also be an issue for the government.
The INA says 鈥渢he president can deny entry to a class of immigrants for however long he deems necessary,鈥� says Josh Blackman, an associate professor at the South Texas College of Law in Houston. 鈥淭hat makes sense when it鈥檚 temporary, but this is not temporary.鈥�
Specifically, Congress amended the INA in 1965 for the central reason of making it easier for foreign nationals to visit family members (often referred to as 鈥渇amily reunification鈥�). The third travel ban鈥檚 indefinite duration 鈥渦ndermines the structure and purpose of the [INA], thereby exceeding the power that Congress delegated to the President in the statute,鈥� wrote Peter Margulies, a professor at Roger Williams School of Law, in .
Professor Blackman doesn鈥檛 think the ban鈥檚 indefinite duration will decide the case. The 鈥渁s long as the president deems necessary鈥� language in the INA 鈥渋s fairly broad,鈥� he says. But he does think the Supreme Court could rule on the case before its current term ends next June.
鈥淚 fully expect the judges [in Maryland and Hawaii] to write what they did before. That probably won鈥檛 stand up [later on] but it will probably be what happens at first,鈥� he adds. So long as the Supreme Court can take up the case by March they could issue a decision before the 2018 summer break.
Judge Chuang asked tough questions Monday of lawyers representing plaintiffs seeking to block the executive action鈥檚 implementation, . Chuang said he would rule later on whether to grant the plaintiffs鈥� request.
The fact that the justices decided to allow parts of the second travel ban to go into effect but block other parts may indicate that the high court is willing to give the Trump administration more scrutiny than previous administrations, says Mr. Chishti.
鈥淲hether that calculus will change on the executive order 3, we don鈥檛 know,鈥� he adds, 鈥渂ut it was not good news for the administration that the [Supreme Court] was willing to say that the administration鈥檚 orders on immigration cannot be unchallenged.鈥�
Postscript: How the three bans have differed
Travel ban #1: An executive order that suspended for 90 days entry to the US for immigrants from Iraq, Iran, Syria, Libya, Somalia, Sudan, and Yemen; suspended for 120 days the admission of all refugees to the US; indefinitely suspended the admission of refugees from Syria; and prioritized the admission of refugees who are religious minorities in their native countries.
Travel ban #2: An executive order that suspended for 90 days entry to the US for immigrants from Iran, Syria, Libya, Somalia, Sudan, and Yemen (Iraq was removed); suspended for 120 days the admission of all refugees to the US, including refugees from Syria (who had previously been banned indefinitely); and removed the language prioritizing the admission of refugees who are religious minorities in their native countries.
Travel ban #3: A presidential proclamation that placed indefinite restrictions on the entry of certain classes of immigrants and nonimmigrants from Iran, Syria, Libya, Somalia, Yemen, North Korea, and Chad, as well as a small number of government officials from Venezuela.
