Image Credits: AP Photo

Today the Supreme Court held in a 9-0 decision to reinstate parts of President Trump’s executive order or “travel ban,” entitled “Executive Order No. 13769, Protecting the Nation From Foreign Terrorist Entry Into the United States.” There has been a lot of conversation floating around about what’s happening with the ban, so let’s break it down.

The original ban

The original travel ban prevented foreign nationals of seven nations from entering the United States for a period of 90 days. The seven nations are Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. These seven nations have had “known ties” to terrorist groups. Thus the ban was said to have been put in place in the interest of national security.

First ban struck

A federal district court struck down the travel ban by “enjoining several key provisions.” They subsequently denied the Trump Administration’s emergency motion for appeal by the Ninth Circuit. This prevented the government from enforcing the travel ban the way it was designed.

The second ban

Following the suit, President Trump issued Executive Order No. 13780. This order implemented a ban on six nations with known ties to terrorism that produce a heightened security risk for our country. It “direct[ed] the Secretary of Homeland Security to conduct a global review to determine whether foreign governments provide adequate information about nationals applying for United States visas,” “direct[ed] the Secretary to report his findings to the President within 20 days of the order’s ‘effective date’, and directed that the ban cover six of the first seven identified nations, excluding Iraq. It also “suspend[ed] ‘decisions on applications for refugee status’ and ‘travel of refugees into the United States…’ for 120 days”.

Second ban struck

The second executive order was brought to court claiming that it violated the Establishment Clause. The district court issued a temporary injunction preventing the government from implementing and enforcing the ban. This lawsuit was heard in the Ninth Circuit of Hawaii. The Fourth Circuit Court of appeals later heard the case and voted en banc to uphold the enjoinment of the ban. The appeal on the Ninth Circuit issued a per curium opinion upholding the prior ruling. This appeal was held against the President on the grounds that he overreached his power, instead of on original grounds of an Establishment Clause violation.

What are the main issues?

The main issues at play are:

  • There is a claimed violation of the Establishment Clause;

  • There is a claim that the President acted outside of his power; and

  • The ruling by the Circuit courts did not alter the effective date of March 16th, making the expiration date June 14th, upon which day the issues would be moot.

Why was there controversy?

Many dissenters claimed that the ban was targeted at Muslims in an effort to prevent certain religious groups from entering the United States. During his campaign, the President said he would institute a “Muslim ban.” Citizens viewed this ban as the ban he had promised. Critics claimed it was racially and religiously biased which would violate the Establishment Clause of the 1st Amendment. The President vehemently opposed this claim. He said his motives were purely to protect the security of the United States from foreign enemies.

Why does the Supreme Court ruling matter?

The Court upheld the ban unanimously saying that anyone wishing to travel from one of the listed nations must have a bona fide relationship to the United States in order to enter. They recognized the government’s compelling interest in ensuring national security. However, they did not rule that the ban is constitutional. Instead, they granted certiorari, ensuring they will hear the case in the future. The portions of the ban they upheld will take effect, however the Court must rule on the Establishment Clause claim and on whether or not the President acted in ways outside of his power. The Court’s grant of certiorari also stated that the ruling of the Hawaii court extended beyond the realm of their control.

The Court’s ruling was issued per curiam, and said the following:

“An American individual or entity that has a bona fide relationship with a particular person seeking to enter the country as a refugee can legitimately claim concrete hardship if that person is excluded. As to these individuals and entities, we do not disturb the injunction. But when it comes to refugees who lack any such connection to the United States, for the reasons we have set out, the balance tips in favor of the Government’s compelling need to provide for the Nation’s security.”

What happens next?

Arguments on this issue will be heard in the fall before the Supreme Court. Their decision will establish a legal precedent regarding the rights of travelers from foreign nations, the Establishment Clause, and the Presidential right to ensure national security.

Corrie L
FFL Cabinet Member
Corrie is a Cabinet Member at FFL. She is passionate about coffee, Jesus, and lipstick, and never wears white after Labor Day. If she isn't busy talking about law school or FFL, you can find her studying constitutional law or reviewing a contract. Her plan A is Super Mom turned Supreme Court Justice, and she hopes to one day be just like Sandra Day O"Connor.

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