Supreme Court Takes Historic Case on Trump Travel Ban
January 25, 2018
January 19, 2018 | Breitbart By ACRU General Counsel Ken Klukowski
WASHINGTON, DC—The U.S. Supreme Court on Friday granted review in the legal challenge to President Donald Trump’s permanent policy restricting entry into the United States from the residents of eight terror-prone nations, in what will be a historic case on presidential authority, national security, the role of the courts in immigration, and the Constitution’s guarantee of religious liberty.
This travel policy has gone through three versions since President Trump was sworn into office, and the Supreme Court’s decision in the case they accepted Friday should permanently settle all legal challenges to his authority on this subject.
Congress delegated broad authority to the president in 8 U.S.C. § 1182(f), a provision in federal law which provides:
Whenever the President finds that the entry of any aliens or any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
One week after being inaugurated, President Trump invoked that authority on January 27, 2017, to issue Executive Order 13769, establishing a temporary ban on immigration from certain terror-prone nations while the new administration developed “extreme vetting” measures to ensure that dangerous people were not entering the country.
When that executive order ran into early legal trouble, President Trump superseded it on March 6 with Executive Order 13780, providing additional findings and specifics justifying the policy.
Liberal Democratic opponents of the policy continued to pursue legal challenges to these measures, taking the case to a leftwing federal judge in the U.S. District Court for the District of Hawaii, Judge Derrick Watson, who predictably struck it down.
By filing the lawsuit in Hawaii, the plaintiffs—represented by former U.S. Deputy Solicitor General Neal Katyal, who served under President Barack Obama—knew that any appeal would go to the U.S. Court of Appeals for the Ninth Circuit. As expected, the Ninth Circuit affirmed Watson’s ruling striking down the ban.
The Supreme Court then reversed the Ninth Circuit for the most part by a 9-0 vote. (Four justices voted to give President Trump a complete victory in that challenge.)
Then President Trump superseded those temporary measures on September 27, when he announced a permanent policy in Presidential Proclamation 9645.
Once again, the Hawaii District Court blocked the policy. And once again, the Ninth Circuit affirmed. U.S. Attorney General Jeff Sessions vowed to appeal, and on January 5, 2018, U.S. Solicitor General Noel Francisco petitioned the U.S. Supreme Court to take the case.
On January 19, the Supreme Court granted review in this blockbuster case. The justices will decide four questions:
Whether [Hawaii’s] challenge to the President’s suspension of entry of aliens is justiciable.
Whether the Proclamation is a lawful exercise of the President’s authority to suspend entry of aliens abroad.
Whether the global injunction is impermissibly broad.
Whether Proclamation No. 9645 violates the Establishment Clause.
In other words, the Court will decide first whether policies of this nature can be taken to court at all, or left instead to Congress and the president.
If lawsuits are permitted, the justices will next decide whether President Trump’s specific proclamation here is consistent with federal law as passed by Congress.
The Court will also tackle whether it exceeds a district court’s authority under these circumstances to issue a worldwide injunction again all U.S. federal officers, or if instead their orders must be narrower and more modest in scope.
Finally, the Court will tackle the issue of whether this policy violates the Establishment Clause of the U.S. Constitution, because the plaintiffs here claim that the policy is actually a ban on Muslims, arguing that this is a government establishment of an official state religion.
The case will almost certainly be argued the last week of April, with a decision at the end of June 2018.
The case is Trump v. Hawaii, No. 17-965 at the Supreme Court of the United States.