UNITED STATES – Supreme Court to decide travel ban legality

The Court has the opportunity to settle some of the legal questions that have surrounded the travel ban and its earlier iterations for almost a year.

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The Supreme Court said Friday that it will rule on legal challenges to the latest version of President Donald Trump’s travel ban. Oral arguments are set for April and a ruling is expected before the end of the Court’s term in June.

Key points:

  • The Court will review a 9th U.S. Circuit Court of Appeals ruling that found Trump exceeded his authority in issuing the travel ban. A separate ruling from the 4th U.S. Circuit Court of Appeals, on an appeal of a ruling by a Maryland district court, is expected any day, and that case could be added to the Supreme Court review. While the 9th Circuit decision was based on issues relating to the statutory authority of the president and did not address the constitutional concerns that were the focus of the Maryland Court, the Supreme Court asked for briefings on both statutory and constitutional claims challenging the travel ban.
  • The ban has been in full effect since December when the Supreme Court lifted injunctions put in place by courts in Hawaii and Maryland, saying the ban could be implemented while litigation challenging them played out in the courts. The travel ban applies to nationals of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen and the restrictions are specific to each country.

Background: The latest version of Trump’s travel ban was issued in September after two earlier versions were met with resistance in the courts. The third version applied to more countries, but was also more carefully crafted to withstand judicial scrutiny. The Court is now set to rule on the merits of the legal challenges, including whether the president had the legal authority under the Immigration and Naturalization Act to issue the ban and whether it represents a violation of the First Amendment’s Establishment Clause.

BAL Analysis: The Court has the opportunity to settle some of the legal questions that have surrounded the travel ban and its earlier iterations for almost a year. The Court’s previous order allowing the travel ban to remain in place pending appeal indicates that the Court may be inclined to support this version of the ban, but the Circuit Court opinions, which had not yet been considered by the Court, may influence the justices’ final decision.   

The current version of the ban has not dramatically expanded the number of employees subject to travel restrictions for most companies. BAL released an FAQ on the restrictions when they were released in September. The analysis is available here.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@balglobal.com.

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