US travel ban: Supreme Court drops cases amid new challenges

Michael Goldhaber, IBA US Correspondent

Both courts were swayed by tweets and comments from the President suggesting that the orders’ discrimination on the basis of nationality was a proxy for the ban on Muslims entering the US proposed by Trump during the presidential election campaign.

In June, in accepting the case for review, the Supreme Court allowed the order to proceed for 90 days against travellers, and 120 days against refugees, who lack ‘a bona fide relationship’ to the US. While the government construed ‘bona fide’ narrowly, the Ninth Circuit construed it broadly. In early September, the Supreme Court agreed with the Ninth Circuit that relatives such as grandparents of US citizens have a bona fide relationship, but let the government maintain its orders against 24,000 late-stage refugees who had been assured entry by resettlement agencies.

IRAP v Trump had been due to go before the Supreme Court this autumn. But, on 24 September, the travel order expired, and President Trump issued indefinite travel restrictions targeted at his security concerns in eight nations – including non-Muslim countries North Korea and Venezuela. The Justices swiftly cancelled oral argument, declared IRAP v Trump moot and vacated the Fourth Circuit ruling.

A month later, on 24 October, the refugee order lapsed and the US generally resumed admitting refugees subject to increased 'vetting'. The US said it would take 90 days to review its refugee policy in 11 unidentified nations, while admitting refugees from those nations case by case under more stringent standards.

In any event, plaintiffs who view the new travel restrictions, like the previous bans, as discriminatory against Muslims, are mounting new legal challenges. In the meantime, Justin Cox, who represents IRAP, says the cases were ‘still worth bringing and litigating for lots of reasons’. The ban’s initial narrowing confirmed the legality of up to 100,000 people with valid visas. Equally important, he says, the cases have ‘raised public consciousness about the President's campaign against immigrants of all types’.

Joshua Blackman, Associate Professor of Law at South Texas College of Law Houston, who co-writes a leading constitutional casebook, is keen for the Supreme Court to address several timeless issues of first impression. He sees no precedent to ban a state ‘establishment of religion’ in the realm of national security. Indeed, he argues, there are many immigration laws that give special status to Christian refugees. As a matter of interpretation, he sees no precedent for courts to read a President’s mind based on statements he made before taking the oath of office.

Cox, who is based at the National Immigration Law Center, retorts that ‘there's nothing unprecedented about courts using campaign statements to ascertain’ intent. ‘The only reason this case is so unprecedented,’ he adds, ‘is because Donald Trump is so unprecedented. No one would’ve thought before, “Well, of course you can exclude immigrants based on their religion.”’

Professor Blackman also objects that plaintiffs untouched by the travel ban can’t claim constitutional standing merely because they were offended. ‘Article 3 [of the US Constitution] requires concrete injury,’ he says. ‘If it's purely how something makes you feel, that won’t cut it.’

Cox cautions against ‘minimis[ing] the injury inflicted by being a Muslim living in a country that just elected a President on a platform to ban Muslims. It goes beyond hurt feelings… These sorts of establishments of religion make non-adherents feel like outsiders in their own community’.

Lower courts saw this harm as not just cognisable but unacceptable. The Fourth Circuit, for instance, stated that the travel ban order 'drips with religious intolerance’.

Blackman takes issue with this. ‘If the President is usurping powers of Congress, courts can check that,’ he says. ‘[But] they're going above and beyond this. They're resisting him. Many of these judges are convinced Trump is an existential threat, and they're willing to leapfrog over a number of prudential considerations…. The tone of hostility of some of these judges was, “Who can issue a bigger injunction first?”’

Cox, on the other hand, finds the courts’ response entirely appropriate. ‘The courts just did their job, which was to enforce the Constitution,’ he says. ‘They saw someone who was doing something flagrantly unconstitutional and so… [they used] some strong language. I don't know we would want anything but that. Because you've got the person in the highest office in the country using [his] powers… to ban people based on their religion.’