Trump Seeks Supreme Court’s Say on Travel Ban Ruling

Within days after once again losing in litigation challenging the so-called travel ban, the Trump administration late this week formally requested the U.S. Supreme Court review the matter. The government’s petition for a writ of certiorari asks the nation’s highest court to overrule the decision of the U.S. Court of Appeals for the Fourth Circuit last week and lift the nationwide injunction on the most controversial component of President Trump’s revised executive order: a 90-day suspension on entry into the United States of citizens from six majority-Muslim Countries—Iran, Libya, Somalia, Sudan, Syria, and Yemen.

The Supreme Court responded to the request yesterday, asking for the plaintiffs in the case to submit a formal response to the government’s appeal by June 12.

Gist of Trump’s Request

The government’s attorneys, led by Acting Solicitor General Jeffrey B. Wall, argued in the petition that the appellate court’s opinion was anomalous with respect to precedent. In deciding in favor of the travel ban’s challengers, both the appeals court and lower district courts relied on President Trump's own words as a candidate—in which he pilloried Muslims and expressed anti-Islam bias—as a lens into the executive order’s underlying motivations. (Interestingly, the president’s campaign website recently removed Trump’s original campaign promise to end Muslim immigration into the U.S.) The Supreme Court “has never invalidated religion-neutral government action” on the basis of “judicial psychoanalysis,” the government says in its petition, concluding that the court erred in transposing “speculation about officials’ subjective motivations” onto an executive order whose textual purpose is a national security-derived directive. This contention counters the appeals court’s finding last week that Trump’s “asserted national security interest” seemed to be “a post hoc, secondary justification for an executive action rooted in religious animus.”

In terms of the applicable legal standard, the Trump administration must convince the Supreme Court that it will be irreparably harmed if it is prohibited from enforcing the travel ban, which it notably has yet to even implement.

What Happens Next?

At least four of the nine justices must agree to hear a case before the Supreme Court grants a request for review. At least five justices would have to side with the government in order to lift the injunction, and if the court hears the case, at least five would have to agree with the president for Trump to ultimately prevail on the merits. Given the appointment of Neil Gorsuch, which restored the Supreme Court’s conservative majority, the administration may be right to perceive a greater chance of succeeding.

The government’s appeal clashes with a structural timeframe. The Supreme Court’s current term ends later this month, and if it decides to hear the case, oral arguments would be scheduled for this October at the earliest. If five or more justices decide to reverse the nationwide injunction in the interim, thereby allowing the travel ban to go into effect, the “temporary 90-day pause” will have already elapsed by the hearing date. This would effectively render the case moot before it could be heard.

Our Thoughts

Our experienced immigration attorneys will continue to keep apprised of developments pertaining to travel ban litigation. As we wrote last week, review by the Supreme Court is the last chance the Trump administration has to succeed in its goal of fully implementing the controversial executive order.

By the end of this month, we will know of the Supreme Court’s decisions on whether or not to hear the case and, more important at present, whether or not to lift the injunction on the travel ban beforehand. Accordingly, until then, and out of an abundance of caution, we continue to offer three recommendations to potentially affected parties:

  • If you’re a citizen of one of the six listed countries planning to travel to the U.S., or an intending immigrant with refugee status, we urge you to expedite your arrangements to enter the country.
  • If either of the above categories applies to you and you’re currently in the U.S., we additionally recommend that you weigh canceling any pending or scheduled plans to travel abroad.
  • Lastly, if you are an employer of personnel in the U.S. who are citizens of the six listed countries, it is prudent to counsel them to plan any international travel very cautiously in light of the still-pending litigation.

This is a developing news story, and as more information becomes available, updates will be published on our news section.

Former U.S. Consular officer, Attorney Sechyi Laiu joined Zhang & Associates, P.C. on June 26, 2017

At Zhang & Associates, P.C., Attorney Laiu specializes on Consular Processing cases and business development. Attorney Laiu also focuses on TN visas, E visas, CBP administrative proceedings (monetary confiscation, deferred inspection), and overseas financial compliance.

Prior to joining Zhang & Associates, P.C., Attorney Laiu worked for the U.S. Department of State as a Chinese and Portuguese speaking diplomat. As a consular-coned officer who served in Vancouver (Canada), Shenyang (P.R. China), and Rio de Janeiro (Brazil), Attorney Laiu processed over 30,000 visa cases and worked in every section of Consular Affairs overseas (Fraud Prevention Unit, Immigrant Visas, Non-Immigrant Visas, and American Citizen Services).

He will use his experience and expertise to deliver the highest quality of service to our clients.

Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.

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