Challengers respond in latest travel-ban dispute

by Amy Howe, Scotus Blog, November 28, 2017

Challengers in Hawaii and Maryland responded today to the government’s request to have the Supreme Court intervene in the ongoing litigation over President Donald Trump’s effort to restrict travel to the United States by nationals from certain countries, often known as the “travel ban.” The challengers urged the justices to stay out of the dispute for now, with Hawaii stressing that the court had already “considered and rejected a stay request indistinguishable from the one the Government now presses.”

The challenges now before the Supreme Court center on the president’s September 24 proclamation, which restricted the entry into the United States of nationals from eight countries – Iran, Libya, Yemen, Somalia and Syria (all of which were covered by an earlier order, issued on March 6), along with North Korea, Venezuela and Chad (which were not covered by the March 6 order). After a federal judge in Hawaii blocked the government from enforcing the September 24 order, the federal government went to the U.S. Court of Appeals for the 9th Circuit, which allowed part of the order to go into effect pending appeal. However, the 9th Circuit barred the government from enforcing the order as to nationals of affected countries who can claim to have a genuine relationship with a person or institution in the United States. And in a parallel proceeding in federal court in Maryland, another judge imposed a freeze similar to the 9th Circuit’s; last week the government asked the Supreme Court to block that ruling as well while the government appeals to the U.S. Court of Appeals for the 4th Circuit.

In its filing today, Hawaii reminded the justices that the scope of the 9th Circuit’s order is identical to the one that the justices themselves imposed last summer, after announcing that they would review the challenges to the March 6 order. But with the replacement of the March 6 order by the September 24 order, the rationale for the “dramatic relief” that the government is now seeking “has only weakened,” particularly because – unlike the March 6 order – the latest order applies indefinitely. Moreover, Hawaii adds, the September 24 order suffers from all of the same flaws as the earlier order: It is inconsistent with federal immigration law, the scope of presidential powers and the Constitution.

The challengers in the Maryland case echoed Hawaii’s arguments. When it prohibited the government from enforcing the March 6 order against individuals with genuine ties to the United States, the Supreme Court “explicitly recognized what the government again ignores here: the palpable harms that these bans visit on the plaintiffs and others similarly situated.” The harms are even more grave here, the challengers contended, because the September 24 order applies indefinitely. By contrast, nothing has changed on the government’s side.

The federal government will likely file its response to today’s briefs soon. The justices could act on the government’s request as early as this week. Oral arguments in the 9th and 4th Circuit appeals are scheduled for early December, with decisions in those courts likely before the end of the year.

This post was originally published at Howe on the Court.