The battle over the latest iteration of President Donald Trump’s efforts to restrict travel to the United States by nationals from certain countries came to the Supreme Court on Monday. In a filing late in the day, the Trump administration asked the justices to allow the full set of restrictions – often known as the “travel ban” – to go into effect while the government appeals a ruling by a federal district judge in Hawaii blocking the ban.
It seemed all but inevitable that litigation over the travel ban would return to the Supreme Court after the justices dismissed the challenges to an earlier iteration of the ban. That earlier version, issued on March 6, halted the issuance of new visas to nationals from six predominantly Muslim countries (Syria, Libya, Yemen, Sudan, Somalia and Iran) and temporarily suspended the admission of refugees into the United States. The Supreme Court had been scheduled to hear oral arguments in the challenges on October 10, but the court removed the two cases from its calendar (and eventually dismissed them) in the wake of a new order from the president, issued on September 24.
The September 24 order restricted the entry into the United States of nationals from eight countries – Iran, Libya, Yemen, Somalia and Syria (all of which were covered by the March 6 order), along with North Korea, Venezuela and Chad (which were not covered by the order). The challengers returned to court, where U.S. District Judge Derrick Watson put the new order on hold. The federal government appealed that ruling to the U.S. Court of Appeals for the 9th Circuit, which allowed the September 24 order to go into effect while the government appeals, with one exception: Nationals of the affected countries who can claim to have a genuine relationship with a person or institution in the United States.
On Monday the federal government went to the Supreme Court, asking it to allow the full order to go into effect while the challenge is being litigated. The government emphasized that the president’s September 24 proclamation is “the culmination of an extensive, worldwide review process conducted by multiple government agencies to determine what information is necessary from each foreign country in order to admit nationals of that country to the United States while ensuring that travelers do not pose a security or public safety threat.” Moreover, the government added, the September 24 proclamation “differs from the President’s prior executive orders in both substance and process” – including covering “different countries than the prior orders: it removes one majority-Muslim country; adds other countries, some of which are not majority-Muslim; and excludes various non-immigrant travelers from all but one of the majority-Muslim countries. These differences,” the government concludes, “confirm that the Proclamation is based on national-security and foreign-affairs objectives, not religious animus.”
On Tuesday morning, the justices asked the challengers to file a response to the government’s filing. The response is due on Tuesday, November 28, by 12 p.m. On Tuesday evening, the justices also fielded another request from the government in the travel-ban litigation: As the government indicated that it would do in Monday’s filing, it has also asked the court to intervene in the parallel challenge, currently pending in the U.S. Court of Appeals for the 4th Circuit, to block a ruling by a Maryland judge that bars the government from enforcing part of the September 24 order. The justices quickly instructed the challengers in that case to file a response by next Tuesday as well.