News organizations this week are reporting again on President Trump’s so-called travel ban. But what exactly does that mean? We receive a lot of questions about the travel ban in the context of President Trump’s overall stance on immigration issues and how the travel ban affects visas and possible future employment of citizens from other countries. We will discuss in this post a little bit of the ban’s history and who it affects. As for the legal developments on the ban this week, the administration did receive some good news (for a change), but it ain’t over ‘til it’s over.
What Is the Travel Ban?
You may recall that during his campaign President Trump promised restrictions on travel into the United States from certain countries. This was to be part of the new administration’s attempt to combat terrorism. After assuming office, President Trump issued a travel ban by executive order almost immediately. Opposition groups attacked that executive order legally on multiple constitutional and statutory grounds. Subsequently, the administration issued two more versions of the travel ban, assumably to give the executive order a better chance of surviving legal challenges. We are now on the third version of this executive order. Our team blogged about some of the immigration aspects of the original and subsequent executive orders, including here.
The third and latest ban was issued just this past September. The current ban includes restrictions on travel into this country from Chad, Iran, Libya, North Korea, Somalia, Syria, Yemen, and by certain government officials from Venezuela. The basis for the administration’s ban is to restrict travel from countries with a significant terrorist presence that do not have adequate identity management or information sharing.
Why Was the Travel Ban Challenged?
The travel ban, in all versions, has been challenged primarily on establishment of religious grounds. The challenges assert that the travel ban targets countries on the basis of the predominant religion in those countries. Specifically, the ban has been labeled a Muslim ban by some groups.
Actions by the Lower Federal Courts
The latest version of the travel ban was challenged by lawsuits in Hawaii and in Maryland. Federal district judges in both locations immediately enjoined the ban from taking effect until the lawsuits could be finally resolved, and of course the administration filed appeals. The appeal in Hawaii was to the federal Ninth Circuit Court of Appeals in San Francisco, and the Maryland appeal was to the federal Fourth Circuit Court of Appeals in Richmond.
Neither the Ninth nor the Fourth Circuit have yet ruled finally on the issues in the cases. However, relevant to what happened this week, the temporary injunctions that previously had been entered in both cases preventing the implementation of the ban until the courts finally ruled remained in effect during the appeals. In other words, the bottom line was that, rather than allowing the ban to take effect during the legal-challenge procedure, the ban was suspended during the challenge process.
This week, the Supreme Court of the United States, in a separate order for each case, ruled that the ban could not be halted during the legal-challenge process. So now, rather than the ban being on the sideline during the lawsuit and appeal process, it goes into effect immediately.
These events this week are important for at least a couple of reasons. First, the U.S. now has an actual travel ban, not just a possible one in the future. Second, the Supreme Court may be indicating how it might rule on the ultimate issue of whether the travel ban as currently written is legal. Certainly the Supreme Court will be ruling again soon “on the merits” after the Fourth and Ninth Circuits decide the legal issues before them. Again, the next time the Supreme Court speaks, it likely will be on the true legality of the travel ban and not just the temporary postponement of it. So, it ain’t over ‘til it’s over.
We will continue to post on President Trump’s executive orders and their impact on immigration compliance.