Updated Dec. 4
The Supreme Court has granted the Department of Justice's request to allow President Donald Trump's latest travel ban to take effect throughout the appeals process. Trump ordered the ban Sept. 24, and two federal appeals courts are scheduled to hear arguments this week. The Supreme Court could hear further appeals down the line, however, and Monday decision allows the ban to take effect throughout that process. This interim decision is considered by some to be a litmus test for a potential future ruling by the Supreme Court.
Posted Nov. 21, 2017
The Department of Justice has requested the Supreme Court to
allow President Donald Trump's full travel ban to go into effect while it
awaits oral arguments in California's Ninth Circuit Court of Appeals scheduled
for Dec. 6. Hawaii
District Judge Derrick Watson's previous ruling would have allowed citizens
from Chad, Iran, Libya, Somalia, Syria and Yemen to travel to the U.S. without
recognized family or local organizational relationships, but a three-judge
panel on the Ninth Circuit Court put a partial stay on Watson's decision.
Trump's Sept. 24 proclamation
tailored the scope of his previous travel bans to include the six countries
above, but also placed fresh restrictions on North Korean travelers, for whom
travel already was largely frozen, and certain government officials from
Venezuela. The restrictions would have gone into effect on Oct. 18 but for
Watson's ruling to stay the order for the six majority-Muslim countries,
arguing that the proclamation failed to prove that these travelers were a
threat to the U.S.
Maryland District Judge Theodore Chuang also ruled to stay Trump's
order, arguing that the order amounted to little more than religious
discrimination against Muslims. He nevertheless narrowed the scope of his stay
to travelers with a bona fide family relationship—previously identified as a
parent, grandparent, son, daughter, cousin, aunt or uncle—or a documented
relationship with a U.S. entity, such as a business, university or resettlement
agency.
Neither judge challenged the ban for North Korea or
Venezuela.
California's Ninth District Court last week took the same
tack as Chuang when reviewing the DOJ's appeal of Watson's stay, ruling that
the ban should be allowed to stand for travelers who lacked an established
relationship in the U.S. Those with a bona fide relationship, however, should
be allowed to travel to the U.S. during the appeals process, according to the circuit
court.
Conversely, the DOJ has asked the Supreme Court to clear the
travel ban to take full effect for all eight countries until the Ninth Circuit can
rule on the case. The Trump administration says the current travel ban is
"cured" of any potential "animus" toward any particular
religion and is based on a full review of travel security thresholds in the
eight identified countries.
The fact that the lower-court decisions hinge on the
"bona fide relationship" aspect could be key. The Supreme Court
introduced that mitigating language this summer when it cleared President
Trump's second travel ban to take partial effect while the opposing parties
prepared for oral arguments scheduled for October. Those arguments never took
place, as the Supreme Court determined the case to be moot once Trump issued
the proclamation for the third version of the ban in late September.
The court had hinted it expected a resolution on the
previous travel ban prior to having to take up the case. The previous order had
a 90-day expiration date that would have nearly run its course by the time the
court was scheduled to hear arguments. The current travel ban has no
expiration.
In asking once again for the Supreme Court to allow the ban
to proceed during an appeals process, the Trump administration may be testing
the waters for a more definitive decision should the case ultimately proceed to
the high court.