It’s been more than a year and many legal challenges since President Donald Trump’s first policy banned travelers from seven Muslim-majority countries, prompting confusion and protests at airports across the country. Now a revised version of that policy is before the U.S. Supreme Court and the justices could issue a decision within days. David Schlesinger, a federal appellate court attorney, broke down the arguments in the case.
Q: Remind us who the policy bans and why the president says it is necessary.
A: The current version of the travel ban which went into effect in late September 2017 bans individuals from eight different countries.The six that most people tend to focus on are three in Africa, Libya Chad and Somalia, and then three in the Middle East, Iran, Yemen and Syria. North Korea and Venezuela were also added to the travel ban. Most of the focus is on those other six countries because they are predominantly Muslim countries.
The administration has argued that there needs to be heightened focus on people from those eight countries who are applying for different types of visas to enter the United States, either immigrant visas, people would commonly call green cards, or non-immigrant visas, commonly called tourist visas, student visas, different types of employment related visas. Because they’re non-immigrant visas it means people who have them aren’t allowed to stay in the U.S. indefinitely, they have to renew their visas when they expire or else they have to leave the country.
Q: Why does the president say we need this policy?
A: They view people from those eight countries, particularly the six predominantly Muslim ones as requiring extra security precautions, extra vetting, extra investigation before they can enter the United States. And the administration as of now, because this so-called travel ban is still in place, they’re not convinced that those countries have adopted the kinds of procedures necessary to allow for that what the administration often calls the extreme vetting policy to be fully implemented. So they believe for national security reasons that these measures are necessary.
Q: Can you simplify the arguments on both sides of Trump v. Hawaii?
A: In general the challengers — I call the challengers the state of Hawaii although there are other organizations, other people, other entities who are challenging the ban in different proceedings, but in this particular Supreme Court case it’s the state of Hawaii. They have two principal arguments. First is that the ban as it’s currently constituted violates the Immigration and National Act because it discriminates on the basis of nationality which a 1965 amendment to the INA by Congress prohibits.
Then the second principal argument which is one that I think the court is grappling with most seriously is whether the travel ban in its current form violates the establishment clause of the First Amendment, which prohibits the government discriminating against a particular religion. The view of Hawaii is different statements by President Trump when he was a candidate for president and continuing into his tenure in the White House have indicated that he has a bias against Muslims and therefore, in the state of Hawaii’s view, there was an intent to discriminate against Muslims by implementing this travel ban.
Q: Now on the other side, what is the Trump Administration saying?
A: In regard to the Immigration and Nationality Act, they believe that an earlier passed provision, an earlier enacted provision within the INA gives them the authority to make these national security-related determinations, even if it’s applied in a blanket fashion to a particular country.
Regarding the establishment clause, they believe that the executive order has to be read on its face, that any statements by Mr. Trump when he was a candidate shouldn’t apply...and that anything he said in office is not sufficient to show that he has enacted the current version of the travel ban with discriminatory intent.
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Q: Remind us how we got here with this case before the U.S. Supreme Court.
A: It’s a long and winding road. The first version was signed into law, if you want to call it that, on Jan. 27, 2017. It was a much broader ban and it’s something I think that’s important for people in the audience to be aware of is that the first ban applied not just to people who did not have visas and were seeking them but it applied to all current visa holders from what were they the seven countries on the ban (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen).
Q: So that’s an important distinction between that first version and now this third version?
A: It’s a very important distinction. The administration had taken the position that green card holders, current visa holders and even dual nationals from those countries were banned from traveling to the United States if they were outside of the country and that created as you and many of your viewers may recall quite a bit of chaos at ports of entry and at airports.
After much public outcry and litigation, principally by the state of Washington, the 9th Circuit basically enjoined the ban in large part. It didn’t totally eliminate the ban but it basically put it on hold while further litigation was continuing and then the administration decided to issue a second version of the travel ban, superseding the first version, and that second version ended up being replaced by the current version in September 2017 that’s subject to the Supreme Court case.
Q: What are some misunderstandings about the case you have heard that we should address?
A: I think the principal one is the breadth. It is much more limited than it was when it was first rolled out in 2017. I think another misconception is perhaps relating to the composition of countries because originally Iraq was part of it. It no longer is. Sudan was originally part of it, it no longer is and there was originally a categorial ban on Syrian refugees and that is no longer in place.
Q: When do you expect a ruling to come down and what will you be looking for in it?
A: I expect it to come down sometime before the end of June… The threshold question I’d be looking at is whether they actually get to the merits.
The court this term in some high-profile cases has not squarely address some of the merits-related issues. To mention a couple of examples: the political gerrymandering cases and the much-noted case regarding the wedding cake for a same-sex couple in Colorado had not been able to get from a baker. The court didn’t squarely address the meaty merits-related questions that the parties had raised and instead decided them on much narrow procedural grounds so I’ll be looking if the court does that here or whether they actually go and address the establishment clause question which would really be a novel development in Supreme Court jurisprudence.
