Last Friday, as the government was moving toward a shutdown due to intransigence among Democrat Senators, the United States Supreme Court made an important declaration and one that may well bring an end to a fight that has been running in the United States legal system since January 27, 2017. The Supreme Court announced that it is willing to review a decision from the Ninth Circuit Court of Appeals (commonly known as the Ninth Circus Court of Appeals) concerning President Donald Trump’s ‘travel ban,’ a series of executive orders that have been the source of much debate.
On December 4, the United States Supreme Court issued an injunction preventing the Ninth Circuit Court from stalling President Donald Trump’s third attempt at a travel ban from going into effect. Many legal onlookers suspected that this meant the highest court in the land would be reviewing the case in the Ninth Circuit Court, which claims that the ‘travel ban’ violates immigration laws enacted by Congress and that it exceeds the scope of executive power.
However, in an interesting move, the United States Supreme Court will also make a ruling on the First Amendment issues that have been claimed to be at play where the travel ban is involved. This means that the Supreme Court will be taking on a legal argument currently being presented to the Fourth Circuit Court of Appeals, without waiting on the Fourth Circuit Court of Appeals to make a ruling.
As President Donald J. Trump’s travel ban currently stands, it bars citizens from Syria, Libya, Somalia, Chad, Iran, and Yemen from being able to enter the United States, as well as barring citizens from North Korea. The ban also extended to certain government officials from the nation of Venezuela, which is currently collapsing and has attempted to blame the United States for its economic woes in local media.
The case in the Fourth Circuit Court of Appeals, which remains ongoing, is based around the idea that the travel ban is ‘targeting’ immigrants from predominantly Muslim countries, and in doing so is violating the First Amendment ban on religious discrimination.
In order to prove that the ban should be rejected on First Amendment grounds, however, it is likely that the claimant will need to prove that the nations are being targeted specifically because they are Muslim nations. In reality, they have ongoing issues with terrorism (all six nations), because they have ongoing issues with piracy (Somalia in particular), or because they are major hotspots for violence (all six).
The case in the Ninth Circuit Court of Appeals, on the other hand, attempts to claim that by denying people from specific nations, President Donald J. Trump has violated various congressional laws concerning immigration. This is an interesting claim to make, especially as President Obama instituted a similar ban with more nations on the list, almost all of which were Muslim, and refused to take in any refugees from any of them. No legal argument stood up against that ban, even though it directly impacted the idea of immigration.
Whatever the decision made in the case before the Supreme Court is, it will have long-term consequences for decades to come. It has generally been held that American presidents have wide control over immigration policy, especially when it comes to banning visitors from certain nations. It has also been held that presidents are allowed to set enforcement of immigration policy via memos declaring their policy, something which President Barack Obama did repeatedly in instituting programs for ‘DREAMers’ and other illegal immigrant groups he wished to protect.
The Supreme Court decision could either codify the legal idea of the power of the executive including the power to determine much of immigration policy or it could lead to the decentralization of executive power where immigration is concerned. Either way, the result would be something not seen in decades, and possibly never seen before.
The Democrat Party seems to be extremely interested in handing President Donald J. Trump a loss on the travel ban, even though past presidents have had bans every bit as arbitrary. At this point, it is up to the Supreme Court, which leans slightly Republican, to decide what the word of the law is and whether or not President Donald Trump’s ban is legal and proper.