Fate of Trump’s Travel Ban could be decided by Supreme Court

Travel Ban

[This story has been updated to reflect recent events.]

President Donald Trump has urged the Department of Justice to appeal recent defeats of his travel ban executive order to the Supreme Court.  The controversial travel ban, which has already been amended once following a successful challenge early in the President’s term, has met stiff opposition from federal judges. The President, who maintains his executive order is necessary for national security, has been publicly critical of the judiciary who opposes him and will look to the Supreme Court for a final decision.

President Trump’s Travel Ban Fails another Legal Test

Earlier this year, after a defeat in federal court, President Trump revised his travel ban executive order to provide a more substantial link between the predominately Muslim countries he targeted and national security concerns which are ostensibly the justification for his sweeping restrictions. With the revised version of his travel executive order addressing some of the peripheral concerns which derailed the first iteration, the central constitutional claim that it discriminated against Muslims became the turning point in the second round of federal litigation against the order. Federal court judges in both Maryland and Hawaii found that despite the President’s concentrated effort on making a connection between the Muslim countries he targeted and national security, the new travel ban was still unconstitutional because it directly targeted a particular religion without sufficient justification.

On appeal of the Maryland judge’s ruling, the complete panel of the U.S. Court of Appeals of the Fourth Circuit voted 10 – 3 to keep the hold on Trump’s travel ban in place. According to the majority opinion, found here, the travel ban was written in violation of Congressional authority which allows the President broad discretion in immigration policy, but prohibits discrimination against immigrants based on race, nationality, or place of birth. The new travel ban, which suspends the US refugee program and halts issuance of visas to travelers from six of the seven countries listed in the initial ban (Iraq was dropped) for 90 days, was heavily criticized  by the Fourth Circuit majority for advancing what the Court perceived to be a disingenuous justification for its creation.

Despite the government’s argument that President Trump’s top priority on enacting the travel ban was national security, the Fourth Circuit found that the true motivation for the order was discriminatory. In a concurring opinion, Judge James Wynn Jr. openly challenged the government’s position by dismissing claims that the order was neutral and writing, “Laid bare, this executive order is no more than what the President promised before and after his election: naked invidious discrimination against Muslims.”  Wynn’s position, which was echoed by the majority, highlights the controversial decision by the judges to evaluate Trump’s executive order in light of statements he made while campaigning.

[Updated: President Trump's more recent tweets appear to undermine the Justice Department's argument that the executive order facilitates "extreme vetting" from some countries for national security purposes, but is not in fact a "travel ban." On June 5, 2017, the president tweeted: "People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!"]

Federal Court Points to Trump Campaign Statements to Dismiss Travel Ban

Weeding through the legalese and complicated legal argument in the 79-page opinion, it becomes apparent that the majority of the Fourth Circuit Court of Appeals simply did not believe the Trump administration when attorneys representing the government argued the travel ban’s main purpose was to protect national security. Instead, the judges looked to a series of statements made by then-candidate Trump during last year’s election cycle which strongly suggested the President would restrict travel based on religious beliefs. Candidate Trump seemed to promise a strong stance against Muslim immigration to the United States, and the Fourth Circuit cited numerous examples of these campaign promises when attempting to ascertain the true justification of the travel ban.

According to the majority, the statements made by Trump the candidate reflect and inform the position taken by Trump the president when issuing executive orders. The use of campaign statements has earned criticism from legal circles who are concerned the majority has opened up a Pandora’s Box of relevant information to use when assessing the legitimacy of executive orders or laws in the future. The dissenting opinion, filed by the three Republican appointed judges, took the majority to task for its overly broad rule allowing a limitless review of the President’s statements, “That transforms the majority’s criticisms of a candidate’s various campaign statements into a constitutional violation.”

[Update: The Ninth Circuit, on appeal of an injunction against the revised travel ban issued by a federal judge in Hawaii, joined the Fourth Circuit in ruling that the president's attempt to limit travel from Muslim countries is not valid. The Ninth Circuit did not reach the discrimination issue, because it determined that the president exceeded his authority by basing his decision on national security grounds that were not supported by sufficient evidence.]

Trump Appeals Executive Order to the Supreme Court

In the wake of the Fourth Circuit decision, President Trump took to Twitter to castigate the judiciary for preventing him from protecting the national security interests of the country.  He also hinted that the government would likely appeal the executive order ruling to the Supreme Court, where Justice Anthony Kennedy, whose name was cited numerous times by both sides of the issue, may again provide a critical swing vote. Given the breadth of the issues — Presidential authority on national security, Congressional power to regulate that authority, and Constitutional concerns about targeting members of one religion — it is difficult to predict where the Supreme Court will go if they elect to hear the case.

[Update: The Justice Department has filed a petition seeking Supreme Court review and an interim order dissolving the injunction so that the travel ban will take effect immediately. The Court scheduled briefing on the request to dissolve the order. It will probably decide by the end of June whether to grant review and, if so, whether to dissolve the injunction pending the outcome of that review.]

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