This afternoon the Supreme Court granted the federal government’s request to allow it to enforce the full set of restrictions imposed by President Donald Trump’s September 24 proclamation, often known as the “travel ban.” The proclamation limits 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). A federal court in Hawaii blocked the government from implementing the September 24 order, while a federal judge in Maryland barred the government from enforcing the order with respect to nationals of affected countries who can claim to have a genuine relationship with a person or institution in the United States. The U.S. Court of Appeals for the 9th Circuit imposed a similar freeze on the order while the government appeals the Hawaii judge’s ruling, but that didn’t go far enough for the federal government, which went to the Supreme Court last month seeking to implement the entire ban.
Today the justices agreed to the federal government’s request. In two brief orders (available here and here), the court permitted the Trump administration to enforce the September 24 order while the courts of appeals consider the government’s appeals and, if necessary, during review in the Supreme Court. In doing so, the justices went further than they had in June, when they carved out the same kind of exception to the March 6 order that the lower courts imposed in this case – for travelers who can claim a relationship with the United States. In its most recent filings, the Trump administration had argued that the September 24 order is different from its predecessors not only because of the “extensive worldwide review process” that led to its creation, but also because it applies to countries where Muslims are not a majority, while removing some majority-Muslim countries from earlier lists. Although the challenges are still in a preliminary stage of litigation, today’s orders nonetheless bode well for the Trump administration by suggesting that its arguments may have gained some traction on the court.
The 9th Circuit is scheduled to hear oral argument on Wednesday, with oral argument to follow in the 4th Circuit on Friday. In a sentence that seemed to express a warning rather than simply optimism, the justices observed that, because each court had agreed to expedite the government’s appeal, “we expect that the Court of Appeals will render its decision with appropriate dispatch.”
The orders indicated that Justices Ruth Bader Ginsburg and Sonia Sotomayor would have denied the government’s request.
This post was also published on SCOTUSblog.