Supreme Court Drops Travel Ban Argument After Trump Revises PolicyBy
Lawyers were set to argue Oct. 10 on earlier temporary ban
Justices hint they may let lower courts rule on policy first
The U.S. Supreme Court removed a scheduled clash over President Donald Trump’s travel ban from its argument calendar, raising the possibility it will step aside and let a lower court take the first look at a new version of the policy.
In a one-paragraph order Monday, the court told both sides to file briefs discussing whether a pending case over an earlier, temporary version is now legally moot. The revised policy, issued Sunday and affecting eight countries, supersedes a ban that had affected six mostly Muslim countries. The court had been scheduled to hear arguments Oct. 10 on the earlier policy.
The order doesn’t preclude the court from rescheduling the case for argument at a later point in its nine-month term, which formally starts Monday. Still, the court’s order suggests the justices are contemplating dismissing the case and leaving the challengers to press their arguments at a federal trial court.
Opponents of the policy say Trump is exceeding his authority under the federal immigration laws and violating the Constitution by targeting Muslims. They say the revisions don’t fundamentally change a policy they describe as a "Muslim ban."
"President Trump’s original sin of targeting Muslims cannot be cured by throwing other countries onto his enemies list," one of the challengers, the American Civil Liberties Union, said in a tweet Sunday night.
During the presidential campaign, Trump explicitly called for a ban on Muslims entering the country. He later said he would focus on "territories" and now says the policy doesn’t target a particular religion.
Trump says he is acting to protect the country from terrorism. His new order comes after the Department of Homeland Security recommended restrictions, saying particular countries weren’t providing enough information about their citizens who were seeking to enter the U.S.
The new policy adds North Korea and Venezuela, two countries with few Muslims, to the list of countries facing at least some restrictions. One mostly Muslim country, Sudan, was dropped from the previous list and another, Chad, was added. The five countries that remain on the list are Iran, Libya, Syria, Yemen and Somalia.
“I must act to protect the security and interests of the United States and its people,” Trump wrote in Sunday’s proclamation.
Acting Homeland Security Secretary Elaine Duke said in a statement that the restrictions "are tough and tailored, and they send a message to foreign governments that they must work with us to enhance security.”
Some legal experts say immigration advocates will have a tougher time persuading judges to block the new policy because it was based on a more thorough examination of the risks posed by visitors from particular countries. Even so, Trump’s derogatory campaign statements about Muslims mean the policy may still be vulnerable.
The Supreme Court struck a compromise in June, when it let part of the temporary travel ban take effect. Under that order the ban can’t be applied to those who have a "bona fide," pre-existing relationship with a person or entity already in the country.
The new policy incorporates that compromise order, but only temporarily. After Oct. 18, people with a "credible claim of a bona fide relationship" are excluded as well.
The cases are Trump v. International Refugee Assistance, 16-1436, and Trump v. Hawaii, 16-1540.