The U.S. Supreme Court on Friday said it will decide whether the Trump administration’s latest order banning certain foreign nationals from entering the United States is unconstitutional and also violates federal immigration law.
The justices will likely hear arguments this spring in Trump v. Hawaii. In the case, the government defends the so-called travel ban 3.0, which denies or suspends entry of foreign nationals from Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia. The government contends the immigration order is the result of a multi-federal agency review of whether foreign governments provide sufficient information to screen their nationals.
Besides deciding whether the travel ban violates the Immigration and Nationality Act, the justices ordered both sides to brief whether the ban violates the First Amendment’s establishment clause. Hawaii has argued that the ban also discriminates on the basis of religion.
The administration sought high court review following a ruling by the U.S. Court of Appeals for the Ninth Circuit. The appellate court held that a key section of the Immigration and Nationality Act grants broad authority to the president, but generally does not permit the president to “impose entry suspensions of unlimited and indefinite duration.”
The appellate court ruled the executive order failed to support its conclusion that allowing the entry of those foreign nationals “would be detrimental to the interests of the United States.” It also held that a section of the immigration law prohibiting discrimination of the basis of nationality in the issuance of immigrant visas was a constraint on the president’s authority.
The Supreme Court on Dec. 4 had allowed the travel ban to go into full effect, pending either the appeals court ruling or the justices’ decision on whether to grant review. Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.
U.S. Solicitor General Noel Francisco, in his petition seeking high court review, argued: “By prohibiting the President from denying entry to those aliens on that basis, and preventing the President from using the entry suspensions to encourage the deficient countries to improve their practices, the courts below have overridden the President’s judgments on sensitive matters of national security and foreign relations, and severely restricted the ability of this and future presidents to protect the nation.”
Hawaii, represented by Hogan Lovells partner Neal Katyal, countered, “No prior president has attempted to implement a policy that so baldly exceeds the statutory limits on the President’s power to exclude, or so nakedly violates Congress’s bar on nationality-based discrimination in the issuance of immigrant visas.”
If the high court endorses the government’s “staggering and limitless” view of the president’s power, Katyal warned, the president “could end the family-preference system, revive the national origin quotas Congress abolished a half century ago,” or “shut the borders entirely based on nothing more than his view that the country admits too many foreign nationals.
A federal district court in Maryland also blocked the travel ban’s implementation, except as to nationals of Venezuela or North Korea or persons without “a credible claim of a bona fide relationship with a person or entity in the United States.” The government appealed that ruling to the Fourth Circuit, which, sitting en banc, heard arguments on Dec. 8. The appellate court has not yet ruled.