A Guide to Legal Issues in the Trump Travel Ban Fight

Trump's Travel Ban Partially Revived by High Court

President Donald Trump’s second attempt at a travel ban was partially revived by a June 26 ruling by the U.S. Supreme Court. The court, as soon as October, will consider appeals of rulings by two lower appeals courts based in San Francisco and Richmond, Virginia, that had stopped the ban. The ban bars residents of six mostly Muslim countries from entering the U.S. for 90 days and all refugees for 120 days. The Supreme Court allowed it to take effect except for individuals who have a connection to the U.S., such as a close relative, a job offer or a seat at a university. The federal courts had upheld halts on the ban issued by judges in Maryland and Hawaii. Trump’s second directive, issued March 6, was intended to fix legal problems with his original executive order Jan. 27. Here are the main legal issues in the fight over Trump’s travel bans.

1. Standing

Before anyone can get into court, they need standing -- a legally sufficient injury to their rights that allows them to sue. The Supreme Court’s June 26 ruling allowing entry to the U.S. of people otherwise covered by Trump’s ban who have connections with the U.S. may spawn new litigation. Trump’s second order eliminated Iraq from the list of countries whose citizens are barred from entering the U.S. for 90 days, leaving Iran, Libya, Somalia, Sudan, Syria and Yemen on the list. Like the original order, the second one prohibits entry to all refugees -- people fleeing their homelands claiming persecution or fear of violence -- for 120 days, but Syrian refugees are no longer barred indefinitely. When Trump’s first order was issued, there were plenty of people who had clear claims that they had been harmed: green-card holders who feared they couldn’t come back home after traveling abroad and holders of visas who were taken into custody or sent back home by immigration agents. The second order exempts holders of green cards -- people who are legal permanent residents of the U.S.; people who acquire permits to travel to the U.S. on or after the date of the order; those granted asylum in the U.S. before the effective date of the order; and people who already are legally in the U.S. on visas letting them in for work, study or other approved purposes. As a result, the administration knocked out lots of people with strong claims to standing. On the other hand, the appeals court that blocked Trump’s original order in February pointed to a 2015 U.S. Supreme Court decision that left open the possibility that a U.S. citizen could sue on behalf of a non-American spouse trying to enter the country. States have sued, claiming the travel ban hurts their economies, tourism and employers.

2. Presidential authority

The president has broad authority under immigration law to suspend any class of aliens whose entry would be “detrimental to the interests” of the U.S. Judges who have ruled against Trump say the president can’t issue immigration orders that violate the Constitution. Now it will be for the Supreme Court to rule on the appropriate balance between the White House and the courts. Three of the court’s nine members said they would have allowed Trump’s travel ban to go forward in full while it considers the case, as they think the government is likely to win.

3. Establishment of religion/equal protection

States and individuals challenging the travel bans claim they’re an unconstitutional establishment of religion, by singling out Islam for official disfavor, and illegally target Muslims, in violation of their right to equal protection under the law. The second order dropped a provision that many claimed would give Christian refugees preference. That change didn’t eliminate the religious discrimination claims.

4. Non-discriminatory purpose

The Trump administration has argued that both travel bans were intended to enhance U.S. security -- not discriminate against Muslims. The second order details each of the six countries’ connections to terrorism. It states that two Iraqi refugees and one Somali refugee were convicted of recent terrorism-related crimes in the U.S., and that more than 300 refugees are the subject of FBI counter-terrorism investigations.

5. Can Trump’s words be used against him?

Opponents and courts that ruled against the ban said remarks by Trump and his circle show their intent to discriminate against Muslims. Trump defenders say the orders should be considered on their own terms. A Virginia judge quoted Trump’s 2015 call for a "total and complete shutdown of Muslims entering the U.S." U.S. District Judge Derrick Watson in Hawaii considered remarks by Trump and others and, in issuing an injunction against the ban, wrote: “The court will not crawl into a corner, pull the shutters closed and pretend it has not seen what it has.” Trump had said the second order was a "watered-down version" of the original.

6. Is there a ‘Trump taint’?

The court rulings raise an interesting question: If courts believe Trump’s words show bias against Muslims, is it even possible for the president to issue an order on immigration affecting majority-Muslim countries without the taint of illegal discrimination? Neither the Supreme Court’s June 26 order nor a partial dissent by three justices mention the president’s tweets or statements.

The Reference Shelf

  • The Supreme Court’s June 26 decision to hear the travel ban appeal and allowing the ban to go forward blocking the entry of travelers without a connection to the U.S.
  • The text of Trump’s revised and original executive order, and the Ninth Circuit’s ruling.
  • A White House Q&A about the second order.
  • A graphic showing countries subject to the bans.
  • A QuickTake explainer on refugees and political asylum.
  • Trump’s ban is an attack on religious liberty, writes Bloomberg View columnist Noah Feldman.
  • A profile of the first judge to block Trump’s order.
  • Trump’s and Rudy Giuliani’s Fox News comments haunt them in court.

— With assistance by Kartikay Mehrotra

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