On April 25, 2018, the conservative majority US Supreme Court will hear argument in a legal challenge to the third incarnation of the infamous “travel ban” implemented by the Trump Administration, by way of Executive Order.

Under the current travel ban, in effect since September 2017, citizens of Iran, Libya, Somalia, Syria and Yemen are not permitted to enter the US.

The travel ban has been widely condemned by political commentators for being unconstitutional and discriminatory, on the basis that it prevents citizens of a number of predominantly Muslim countries from entering the US. Indeed, President Trump famously expressed an intention to ban Muslims from entering the US during his Presidential campaign. The current version of the US travel ban reportedly bans approximately 150 million citizens from predominantly Muslim countries from entering the US.

What Happened After The Current Travel Ban Was Implemented?

The current (third) version of the travel ban has been found invalid by the lower Federal Courts, for a number of reasons. Some Federal Judges have ruled that the travel ban violates the Establishment Clause of the First Amendment of the US Constitution, which prohibits Governmental disfavoring of a religion. In contrast, other Federal Judges have ruled that the travel ban exceeds President Trump’s discretion under the Immigration and Nationality Act, since Congress has prohibited the denying of Immigrant Visas on the basis of nationality.

What Is The Basis Of The US Supreme Court Challenge?

The State of Hawaii, which is leading the challenge, contends that the US travel ban violates the Establishment Clause of the First Amendment of the US Constitution, which forbids the US Government from enacting policies that denigrate or exclude members of a particular faith. On that basis, it is submitted that the current version of the travel ban is unconstitutional.

Moreover, Hawaii submits that the travel ban is irrational since, as the lower courts have observed, no individuals from any of the named countries have ever been found to have committed a terrorist act in the United States.

In response, the Solicitor General on behalf of the Trump Administration raises a three strand argument:

  1. In the first instance, the Trump Administration submits that the US Supreme Court cannot review the Executive Order at all, because the Executive Order concerns the discretionary power of the executive branch to issue or deny visas.
  2. Second, in the event the US Supreme Court rules that the Executive Order is reviewable, the Trump Administration submits that the US Supreme Court must limit the review to the text of the Executive Order itself and disregard all public statements made by President Trump regarding the objective of the Executive Order – including his expressed intent to ban Muslims from entering the United States.
  • Third, the Trump Administration submits that even if the US Supreme Court considers the public statements made by President Trump regarding the Executive Order, the Department of Homeland Security carried out an independent review of the visa-vetting process between the second and third versions of the travel ban, which led to the third incarnation of the travel ban. As such, it is submitted that the public statements of President Trump were irrelevant, in light of the review carried out by Government officials.

The American Civil Liberties Union responds to the above arguments thus:

  1. The US Supreme Court has a history of reviewing visa denials where they affect the right of US citizens to be reunited with their family members, as is the case here.
  2. In an established line of Establishment Clause case law, the US Supreme Court has affirmed that Judges cannot simply ignore the context in which the policy in question arose. The US Supreme Court must assess whether a reasonable observer, aware of all the publicly available facts, would understand the Government’s action as targeting a particular religion. In the instant case, the public statements of President Trump regarding his intention to ban Muslims from entering the United States were clear and unequivocal.
  • In response to point (iii) above, President Trump made it clear in no uncertain terms that he intended to reinstate the ban on Muslims entering the US, before the third Executive Order was signed.

In light of the above, the US Supreme Court’s ruling is likely to be a landmark decision, both in terms of defining the Constitutionality of the US travel ban and the limits of the executive powers of the US President.

When Will We Know The Outcome?

The US Supreme Court is expected to hand down its ruling by the end of June 2018.

At Davies Legal Immigration, we hope the travel ban is found to be unconstitutional and is accordingly struck down. We will endeavor to keep you updated.

Davies Legal Immigration

At Davies Legal Immigration, we offer advice and representation in connection with all areas of U.S business, employment and family immigration. We provide the highest standards of client care, at a competitive fixed fee. Call now for a complimentary assessment of your circumstances by a licensed U.S immigration attorney.

Published: 24th April 2018