The U.S. Supreme Court heard oral argument this morning on Trump’s Travel Order No. 3, which restricts visa travel to the U.S. from seven countries, Iran, Libya, Syria, Yemen, Somalia, Chad and North Korea.The Travel Order is not a “travel ban,” it’s an order regulating who can come into the United States. It’s no more a “travel ban” than the U.S. immigration laws. But “travel ban” is how the media and even many Trump supporters refer to it — at one point Trump himself capitulated to this media characterization as to earlier versions of the travel order.It’s not only not a “travel ban,” it’s not a “Muslim travel ban,” which is the rallying cry against it. It does apply to several majority Muslim countries, which were on an Obama-era list of countries that posed the greatest risk of foreign fighters sneaking into the U.S. under visas. It also applies to North Korea and Syria. But it doesn’t apply to most Muslim-majority countries or most Muslims in the world.For background see our prior post, Supreme Court to hear Trump Travel Order No. 3:
The Supreme Court granted certiorari in the government’s appeal from the 9th Circuit/Hawaii District Court order regarding Travel Order No. 3.The Supreme Court Order accepting the case for review stated:
The petition for a writ of certiorari is granted. In addition to the questions presented by the petition, the parties are directed to brief and argue Question 3 presented by the brief in opposition.
Here are the three questions presented in the petition:
1. Whether respondents’ challenge to the President’s suspension of entry of aliens abroad is justiciable.
2. Whether the Proclamation is a lawful exercise of the President’s authority to suspend entry of aliens abroad.
3. Whether the global injunction is impermissibly overbroad.Here is Question No. 3 in the Opposition:
3. Whether Proclamation No. 9645 violates the Establishment Clause.
What this means is that even though the 9th Circuit decision did not rest on a constitutional provision, the Supreme Court wants to here the Establishment Clause issue.
Prior to taking the case on the merits, the Supreme Court issued a stay of most of the lower court’s injunction. While that doesn’t necessarily predict a victory for Trump, it was one in a series of Supreme Court stays of lower court injunctions limiting Trump’s ability to control who enters the country, as I wrote in December 2017, Supreme Court allows Trump’s Third Travel Order to take effect:
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.
The oral argument will be finished this morning, but the audio and transcript will not be available until later today. So in the meantime, we’re stuck with punditry from people who attended.
I’ll add that punditry as it rolls in.
— Here we go:
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