It was a busy day for litigation in the challenges to President Donald Trump’s March 6 executive order, often known as the “travel ban.” Citing national security concerns, the order imposed a temporary hold on new visas for travelers from six Muslim-majority countries (Iran, Libya, Somalia, Sudan, Syria and Yemen) and suspended travel by refugees into the United States. The order was the second of its kind; an earlier version, issued in late January, was blocked by the U.S. Court of Appeals for the 9th Circuit. The March order didn’t fare much better in the lower courts, and on June 1 the Trump administration asked the Supreme Court to enter the fray. Today the challengers submitted their responses to the government’s filings in the Supreme Court. However, those briefs were partly overshadowed by another development: a 9th Circuit decision that largely upheld a Hawaii district court’s ruling barring the government from enforcing the ban.

There are two different sets of challenges to the travel ban involved in today’s Supreme Court filings. The first comes via the U.S. Court of Appeals for the 4th Circuit, which in late May rejected the federal government’s plea to set aside an order by a Maryland judge prohibiting the implementation of the travel ban. In that case, the appeals court relied heavily on the Constitution’s bar against favoring one religion over another, known as the establishment clause: Although the executive order indicates that it was intended to protect the United States from foreign terrorists, the court concluded, statements by the president reveal that the order was actually intended to exclude Muslims from the country.

The government’s June 1 filings asked the justices both to review the 4th Circuit’s ruling and to freeze the Maryland court’s order barring the government from putting the ban into effect. But it also asked the government to step into a second challenge, which hails from Hawaii. Like the Maryland judge, a federal district court in Hawaii also blocked the government from implementing the travel ban, but the 9th Circuit had not yet issued its decision in that case when the government went to the Supreme Court at the beginning of this month.

The 9th Circuit’s ruling came today. Like the 4th Circuit, the Hawaii district court had ruled that the challengers had shown that they were likely to win (part of the legal test for obtaining temporary relief) on their claim that the travel ban violated the establishment clause, and it entered a nationwide order barring the government from enforcing the ban.

The 9th Circuit also ruled for the challengers, but on a different ground. In an unsigned and apparently unanimous opinion, it explained that courts should try whenever possible not to reach constitutional questions if they can decide the case on another ground. In this case, the court continued, it did not need to rule on whether the ban violates the establishment clause because the ban also exceeds the power that Congress has given to the president to regulate immigration.

The 9th Circuit acknowledged that the Immigration and Nationality Act “gives the President broad powers to control the entry of” immigrants into the country, and it also allows him to “take actions to protect the American public.” But, the court of appeals explained, the president cannot simply invoke “national security” as a “talismanic incantation” to justify an exercise of executive power. Rather, the INA allows the president to act only after he finds that allowing an immigrant or group of immigrants to enter the country “would be detrimental” to U.S. interests, and the government has not made that showing.

For example, the court stressed, the government did not find that allowing refugees or any citizens from the six covered Muslim-majority countries would harm the national interest. And the court perceived a disconnect between the government’s announced desire to protect national security and the way that it wanted to accomplish that goal. The 9th Circuit observed that the ban would bar “more than 180 million people from entry based on their national origin, including nationals who may have never been physically present in those countries.” But at the same time, the court added, it would allow nationals of other countries who do have ties to the six covered countries to come to the United States. As the Hawaii district court put it, the ban “could have the paradoxical effect of barring entry by a Syrian national who has lived in Switzerland for decades, but not a Swiss national who has immigrated to Syria during its civil war.”

The president also did not find that current standards for vetting visa applicants or refugees are inadequate before issuing the executive order, nor did he find that the United States would be harmed if the current standards weren’t changed. Indeed, the court of appeals pointed out, the government already can deny a visa application if the individual seeking the visa cannot show that he is eligible. This case-by-case tool allows the government to screen visa applicants and deny applications from individuals who might pose a threat to the United States, and the executive order does not explain why the individual visa process is so “flawed” that the government must instead exclude “an entire class of nationals” from the country.

The 9th Circuit did hand the Trump administration one minor victory: It agreed that the Hawaii district court should not have blocked the government from carrying out some internal government procedures – for example, reviewing the vetting process to determine what information foreign governments need to provide – that don’t affect anyone outside the executive branch.

The 9th Circuit issued its opinion just a few hours before the deadline for the challengers to file their briefs in the Supreme Court. Several themes emerged in the three filings. The American Civil Liberties Union (which represents the challengers in the Maryland case) told the justices that it would be “pointless” for them to grant review because the executive order specifically provides that nationals of the six Muslim-majority countries may not enter the United States for 90 days after the order became effective. The challengers maintain that the 90-day period ends in two days, on Wednesday, June 14 – at which point, they argue, the government’s appeal will no longer matter.

In a separate filing opposing the government’s request to allow the ban to go into effect until the Supreme Court can weigh in, the ACLU contended that if the travel ban doesn’t expire on Wednesday, allowing it to go into effect would effectively enable the government to run out the clock, because the Justice Department has asked the court to review the case next fall, “more than 90 days from now.” Moreover, the ACLU tells the justices, if the ban is implemented it will create “enormous confusion” while causing “immediate and widespread harm to” the challengers and “others like them.”

Hawaii adds that despite the government’s protests that time is of the essence, the government itself is responsible for the slow pace of litigation over the travel ban. For example, although the 9th Circuit put the first ban on hold on February 9, the Trump administration did not issue the second, revised order for nearly a month – “with some of that delay,” Hawaii suggests, “motivated by a desire to take advantage of a favorable news cycle.” And when the Hawaii district court blocked the second order, the state notes, the government spent “weeks litigating the issues” in the district court before it went to the court of appeals. “These are not the actions,” Hawaii contends, “of a Government that believes the immediate implementation of its order is necessary to avoid irreparable harm.”

But in any event, the challengers add, the Supreme Court should not grant review of the 4th Circuit’s decision because the court of appeals “carefully and correctly applied this Court’s precedents to this unique situation.” Accepting the government’s argument, the challengers maintain, would allow “the executive branch to act in open bad faith, even though there is plenty of evidence that the order was intended “to disfavor Muslims.”

Today’s ruling by the 9th Circuit could add a procedural wrinkle to the proceedings in the Supreme Court. The justices may, for example, want additional briefing on the effect of the 9th Circuit’s ruling, or the government could ask the court to weigh in on the 9th Circuit’s ruling as well. But with the end of the court’s term less than three weeks away, the next steps – whatever they may be – are likely to come quickly.

Recommended Citation: Amy Howe, Challengers file briefs in Supreme Court on travel ban, while 9th Circuit leaves freeze on ban in place, SCOTUSblog (Jun. 12, 2017, 9:07 PM), https://www.scotusblog.com/2017/06/challengers-file-briefs-supreme-court-travel-ban-9th-circuit-leaves-freeze-ban-place/