Stays lower court injunctions
The Supreme Court allowed President Trump’s Third Travel Order to take full effect Monday afternoon, lifting two lower court injunctions against the restrictions.
Trump’s Third Travel Order, unveiled as a presidential proclamation in September, restricts entry of nationals from Syria, Libya, Iran, Yemen, Chad, Somalia, North Korea and Venezuela.
A federal judge in Maryland had blocked the travel order from taking effect for anyone with a bona fide family or professional connection to the United States, echoing language the Supreme Court used in June when it allowed Trump’s Second Travel Order to partially take effect. A federal judge in Hawaii had blocked the Third Travel Order entirely (except for North Korea and Venezuela), but was overruled in part by the Ninth Circuit, which held that the restrictions could take effect for foreign nationals lacking the same sort of bona fide connection to the United States.
The Supreme Court has stayed both lower court injunctions, meaning that this Third Travel Order will, for the time being, be implemented in its entirety.
“If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically. If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment,” the Justices wrote. In other words, the stays will last until the Supreme Court either hears the government’s appeal and declares the restrictions unconstitutional, or declines to consider an appeal.
Justice Ginsburg and Justice Sotomayor noted that they would have denied the government’s request, while it appeared that Justice Breyer and Justice Kagan joined the five conservatives in siding with the Trump Administration—or else decided to not to make their disagreement public.
WAJ adds: This is a complete slap down of the lower courts, and something that was well deserved. When Hawaii issued its injunction, I wrote:
I can’t say I’m surprised by the result, considering that the Judge involved here already has ruled against Trump. The problem in this decision, as it was in prior decisions by this and other lower courts, is that the Judge is substituting his evaluation of risk for that of the executive branch.
I also noted, when the 9th Circuit stayed much (but not all) of the Hawaii injunction:
These District Court judges are acting like the litigation in the Supreme Court never took place. While it’s true that SCOTUS never ruled on the merits, the fact that it issued stays of lower court injunctions and scheduled the case on the merits (later dismissed as moot) should have been a message to all but the most tone deaf lower Court judges how to handle subsequent litigation.
Maybe the lower courts will finally get the message.
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