Latest travel ban will probably affect tens of thousands, and it could short-circuit the court battle
On Monday, the Supreme Court put off — at least for now — a hearing on Trump’s previous travel ban, asking instead for briefs on whether the latest restrictions mean there is nothing left for the justices to decide.
Opponents of the ban, meanwhile, vowed to fight on — asserting that the new measure inflicted some of the same harms of the first, and that it was driven by the same discriminatory intent.
“For us, this was a Muslim ban, and it remains a Muslim ban,” said Zahra Billoo, the executive director of the San Francisco chapter of the Council on American-Islamic Relations.
The newest ban is in some ways even more expansive than the last — remaining in effect indefinitely, and imposing restrictions on eight, rather than six, countries. But unlike the last ban, the restrictions vary from place to place, and countries that increase their cooperation and information-sharing with the United States might be able to find their way off the list.
For Syria and North Korea, the president’s proclamation blocks immigrants wanting to relocate to the United States and non-immigrants wishing to visit in some capacity. For Iran, the proclamation blocks both immigrants and non-immigrants, though it exempts students and those participating in a cultural exchange.
The proclamation blocks people from Chad, Libya and Yemen from coming to the United States as immigrants or on business or tourist visas, and it blocks people from Somalia from coming as immigrants. The proclamation names Venezuela, but it only blocks certain government officials.
A Washington Post review of State Department data found that more than 65,000 visas were issued in fiscal 2016 that would now likely fall under the ban. The ban, though, contains a robust list of people who might qualify for a case-by-case exception, including for those with significant U.S. contacts or those wanting to visit close family members.
The ban, too, exempts those already admitted to the United States on the effective date of the proclamation — which, for those not affected by the previous travel ban, is Oct. 18.
The Supreme Court had been set to hear arguments on Trump’s previous travel ban, inked in March, but on Monday it removed that hearing from the calendar and asked for briefs on whether the case was now moot.
One significant piece of the previous executive order — the 120-day ban on all refugees entering the United States — remains in effect until Oct. 24. The latest ban leaves unclear what will happen after that. U.S. officials have been discussing possibly lowering the refugee cap for fiscal 2018 to below 50,000. The fiscal year begins Oct. 1.
Many legal observers think the new directive will make moot the court’s examination of the second executive order. While the court’s three most conservative justices — Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — would have allowed Trump’s order to go into effect as written, the rest of the court has looked for a middle ground.
“It’s hard to see how the court will have much appetite to decide” the merits of the dispute with a new order in place, Kannon Shanmugam, a Washington lawyer who argues frequently before the court, said last week.
In their initial briefs, lawyers for challengers of the executive order — immigrant groups and the state of Hawaii — as well as the Justice Department argued that the case was not moot. Those arguments came before the latest order was issued, but with an awareness that the ban could expire before the court heard the case. After the new proclamation was released, Solicitor General Noel J. Francisco suggested to the justices that they order new briefings from the parties about how it affected the case.
Opponents of the ban were largely mum on what the legal path forward would be.