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us supreme court building 2225765 960 720On June 26, the Supreme Court decided to uphold parts of the immigration order. Now, any foreign persons who do not have a “bona fide relationship with any person or entity in the United States,” will not be permitted to travel to the United States.

The New York Times said it best, “President Trump has excellent lawyers. They have a challenging client.” They were referring to the President’s flurry of tweets after another legal setback continued the injunction on his immigration travel ban against six predominately Muslim countries.

The courts were attempting to answer the question as to whether Trump’s immigration order was legal. In early June, the U.S. Court of Appeals for the Ninth Circuit said the travel ban was discriminatory and lacked the ties to national security that the Trump administration claimed. Similar setbacks have occurred in Maryland, New York, and Hawaii over the past six months.

On June 12, a second federal appeals court ruled against the travel ban. Trump immediately tweeted that he preferred the original ban, and not the “watered-down” version. He also was adamant that the executive order was a “TRAVEL BAN” (the caps were his).

Interestingly, those tweets may actually damage his case to reinstate the travel ban that he’s been trying to enact since January.

Travel Ban Restrictions and Revisions

At the beginning of June, the Trump administration filed a legal brief to ask the U.S. Supreme Court to hear the immigration travel ban. That was the logical next step after six months of court setbacks.

The brief encouraged the Supreme Court to ignore Trump’s campaign rhetoric for a ban on Muslims. Instead, the brief argued, that the court should consider Trump’s statements after he had taken the Constitutional oath for Presidency. They argued, in effect, that Trump was a changed man after taking on the mantle of the highest U.S. political office.

That’s why Mr. Trump’s tweets made opponents of the travel ban so pleased. It exhibits a pattern of behavior that is in fact not different from Trump’s campaign speech rhetoric.

So, what are the differences between the two executive orders? 

  • The first executive order barred any refugee from entering the U.S. for 120 days. It banned Syrian refugees indefinitely. It placed a 90-day halt on visitors from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.
  • Revised executive order replaced the first, taking Iraq off the list of banned countries. It said those with a green card or visa would not be negatively affected by the ban. It also eliminated a provision that seemed to single out Christians for priority refugee status over any other religion. Another big difference was that the executive order was to be rolled out 10 days after issuance, instead of immediately. The first ban was enacted immediately. It resulted in chaos.

It should be noted that since 9/11, not a single American has been killed in a terrorist attack in this country by anyone from the six nations singled out in the travel ban.

Supreme Court Hearing Pending

The President and his administration have asked the U.S. Supreme Court to do two things: First, quickly review and rule on the injunctions halting the ban. Second, to review and rule on the legalities of the ban itself. While our firm does not have a crystal ball, we can make some observations on the next steps for the travel ban.

How likely is it that the court will conduct a quick review of travel ban and rule on lifting the injunction that prevents it from taking effect?

This could allow the travel ban to be reinstated by the end of June before the Supreme Court goes on recess through the fall. How likely is this? According to Vox, it is both likely and unlikely. It’s likely that the Court will favor a more conservative approach to the executive order itself. But what Vox calls “the weirdness of the request,” (to rule so quickly before summer recess) may not work in the Trump administration’s favor. Most believe this will be shelved until the fall. Too, the Trump administration is asking the Court to actually rule on three injunctions that are currently blocking the executive order from going into effect. It’s highly unlikely that all of this data can be reviewed and ruled on before the end of the month. This means fall arguments.

How possible is it that the Supreme Court will uphold the travel ban as constitution?

It's very possible because the Gorsuch nomination means there is now a conservative majority on the U.S. Supreme Court.

Next Steps for Trump’s Travel Ban

In the meantime, President Trump continues to spout off tweets at the slightest provocation. The latest terror attack in London seemed to remind Trump of the defeat of his travel ban in the lower courts.

In the most recent communication, Trump attacked London Mayor Sadiq Khan after the terrorist attack at the beginning of June that killed seven people. The President appeared to misunderstand the context of Kahn’s statement that an increased police presence would be seen in the area and that the community should not be alarmed. Trump tweeted, “At least 7 dead and 48 wounded in terror attack and Mayor of London says there is no reason to be alarmed.”

After angering the international community again, Trump continued to insult his own Justice Department and the court system as being "slow and political," while suggesting, "extreme vetting" is occurring at our borders. 

Interestingly, it should also be noted that the Department of Justice had to defend both versions of Trump’s travel ban­—both of which Donald J. Trump himself had to sign to enact.

But Trump's unabashed tweetfest is only making the defense of his policies even more challenging. So, what will be admissible in the court system? And will SCOTUS interpret Trump’s statements against Muslim’s, or his tweets, as evidence of a pattern of intolerance?

Stay Prepared for the Latest Immigration Challenges

Katz Law Office, Ltd. is staying abreast of the latest immigration news as it happens. We’ve helped thousands of clients fight deportation and set others on the path to citizenship in the United States. We believe our country is a melting pot, and that our diversity is a cornerstone of our democracy. Call us for a free 30-minute consultation to discuss your rights and options.

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