On April 25th, 2018 the Supreme Court heard oral arguments from both sides on President Trump’s highly scrutinized “travel ban”. The travel ban, now in its third iteration, prohibits entry of travelers from five Muslim-majority countries (Iran, Syria, Yemen, Somalia, and Libya), as well as North Korea and government officials from Venezuela. Although previous versions of the travel ban were initially partially blocked by U.S. District Courts in Hawaii and Maryland, the Supreme Court lifted such injunctions in December 2017.
Since Trump first issued his travel order, setting off widespread chaos at airports just a few days after his inauguration, the issue has strongly shaped public perceptions of the new administration. It has also led to a string of defeats in lower courts, where judges ruled that the measure exceeded Trump’s authority and, in some cases, said it reflected bias against Muslims.
However, the Supreme Court of the United States has provided a friendlier forum, on this topic. The justices issued a ruling in June 2017 that allowed the second version of the travel ban to take partial effect. Then, in December 2017, with only two dissenting votes, they set aside lower-court rulings to allow the administration to put the third version into practice, a strong indicator of where the majority was headed.
Justice Samuel A. Alito rejected the notion Trump’s order could be considered a “Muslim ban,” noting it does not apply to most of the largest Muslim nations.
“If you look at what was done, it does not look like a Muslim ban,” he said.
Justice Neil Gorsuch, Trump’s appointee, questioned whether the challengers had standing to sue in the first place. Foreigners overseas do not have rights in U.S. courts, he said. Plaintiffs who live in Hawaii sued, contending the travel ban was illegal, but “third parties can’t vindicate the rights of aliens,” Gorsuch said.
Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy portrayed the issue before the court as one of national security in which the chief executive, not the judicial branch, should be entrusted to weigh possible threats from foreign visitors.
A final decision by the Court is expected at the end of June. Meanwhile, the current version of the travel ban remains in effect during deliberation.
On May 1, 2018, Texas and six other states (Alabama, Arkansas, Louisiana, Nebraska, South Carolina, and West Virginia) filed a complaint for injunctive and declaratory relief against the Trump administration, calling for the end of the Deferred Action for Childhood Arrivals (DACA) program. Central to the states’ argument is the contention that the initial creation of DACA in 2012 exceeded President Obama’s executive authority. The lawsuit comes on the heels of a recent decision of U.S. District Judge John D. Bates for the District of Columbia to deny the Trump administration’s efforts to dismantle the program. Characterizing the Trump administration’s actions as “arbitrary and capricious”, Judge Bates gave the Department of Homeland Security 90 days to “better explain its view” as to why DACA is illegal.
Now rejected by three different district courts, the Trump administration may look towards the Supreme Court for its last hope of ending the Obama-era program. This approach also may prove to be a long shot, however, as the Court refused to hear a key case dealing with DACA earlier this year. Nonetheless, a favorable decision in this most recent lawsuit may force the Court to ultimately address the issue due to conflicting decisions from the lower courts.
As of this writing, DACA applicants are still able to renew their status.
Should you have questions about how the travel ban or ongoing DACA legislation may impact you or a family member, schedule a consultation with one of our immigration attorneys.
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*This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular matter, as each matter has its own set of circumstances and must be evaluated individually by a licensed attorney.