UPDATE ON "TRAVEL BAN" LITIGATION: Trump Administration Asks U.S. Supreme Court to Lift Lower Court's Injunction

June 12, 2017

As previously reported, the Trump Administration issued a revised Executive Order on March 6, 2017, which, in part, temporarily suspends travel from six Muslim-majority countries. The revised Order narrowed the scope of the first “Travel Ban” Executive Order issued in January in an effort by the Trump Administration to avoid the legal challenges raised in multiple federal lawsuits.  Despite these efforts, the revised Executive Order has also been subject to extensive federal court litigation, which has now reached the U.S. Supreme Court. A overview of this litigation is provided below.
 
Federal District Courts Enjoin Trump’s Travel Ban in Hawaii and Maryland

Before the March 16, 2017, effective date of the revised Executive Order,  enforcement of the 90-day “travel ban” provision was enjoined through temporary restraining orders issued separately by the District Courts in the State of Hawaii and the State of Maryland. Both District Courts ultimately ordered nationwide preliminary injunctions which have stayed the enforcement of provisions of the Executive Order to date.
 
Trump Administration Appeals District Courts’ Injunctions in the Ninth and Fourth Circuits 

In response to the two court-ordered preliminary injunctions, the Trump Administration filed two separate appeals before the Fourth Circuit Court of Appeals and the Ninth Circuit Court of Appeals with motions to lift the injunctions ordered by the federal judges in Maryland and Hawaii, respectively. On May 8, 2017, the Fourth Circuit heard oral arguments on the appeal of the Maryland order in an en banc hearing (full judge panel), and upheld the lower court’s preliminary injunction in a 10-3 ruling issued on May 25, 2017. The Fourth Circuit found in its 205-page ruling that the President’s Executive Order is discriminatory in nature against Muslims and violates the religious-freedom protections under the First Amendment’s Establishment Clause.
 
Today, June 12th, a three-judge panel of the Ninth Circuit also upheld the lower court’s injunction in the Hawaii case.  In contrast to the Fourth Circuit, the Ninth Circuit did not reach the issue of whether the Executive Order violated the Establishment Clause or Equal Protection Clause guarantees, and based its decision solely on the President’s authority under applicable immigration statutes.

Trump Administration Requests U.S. Supreme Court to Lift Injunction, and Grant Expedited Hearing 

On June 1, 2017, the Department of Justice (DOJ) petitioned the U.S. Supreme Court to review the Fourth Circuit’s decision, and in the meantime, immediately lift the injunction on the Executive Order, and schedule an expedite hearing during the Court’s fall session. The DOJ argued that issuing the temporary travel ban was within the President’s executive authority, and was not a discriminatory ban directed against Muslims. As of the time of this alert, the Supreme Court has not ruled on the Trump Administration’s request to lift the District Court’s injunction or hearing. We note that the injunction will presumably be rendered moot when the 90-day ban period expires next week, and it is unlikely that the Supreme Court will make a substantive decision on the merits of this case for that reason. 
 
We will continue to provide updates on the federal litigation against the enforcement of the Executive Order.

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