By Lisa Soronen
The U.S. Supreme Court has allowed the third version of the Trump administration's travel ban to go into effect at least temporarily while two federal circuit courts of appeals review decisions from lower courts temporarily blocking enforcement of it.
Even if the government loses before the appeals courts, the travel ban will remain in effect until the Supreme Court rules on it or refuses to rule on it (unless the government doesn’t appeal to the Supreme Court).
The president’s second travel ban prevented people from six predominately Muslim countries from entering the United States for 90 days.
In June the Supreme Court temporarily prevented it from going into effect against those with a “bona fide relationship with a person or entity in the United State” until the court could hear the case on the merits in early October.
The second travel ban was set to expire on Sept. 24. That day the president issued the third travel ban indefinitely banning immigration from six countries: Chad, Iran, Libya, North Korea, Syria and Yemen. People from some of these countries and Venezuela also may not receive particular nonimmigrant visas.
Shortly before the third travel ban was supposed to go into effect federal district courts in Hawaii and Maryland issued temporary injunctions blocking it. While both courts issued nationwide injunctions, the scope of the Maryland injunction is narrower. It only applies to those with a “bona fide relationship with a person or entity in the United States.”
As Amy Howe notes on SCOTUSblog, “the Trump administration had argued that the [third travel ban] 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 U.S. Circuit Court of Appeals will hear oral argument in the Hawaii case on Wednesday, and the 4th U.S. Circuit Court of Appeals will hear oral argument in the Maryland case on Friday. If either of the courts strike the travel ban down, as a practical matter, it will nevertheless remain in effect until the Supreme Court says otherwise.
The Supreme Court’s orders weren’t unanimous. Justices Ruth Bader Ginsburg and Sonia Sotomayor would have denied the government’s request to allow the travel ban to go into effect.
Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog.