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Supreme Court Will Hear Case Challenging Trump's Travel Ban 3.0

The Court's decision to take the case is not surprising. It could potentially result in a very important decision addressing the scope of presidential power over immigration.

The Supreme Court.The Supreme Court.

Earlier today, the Supreme Court decided to consider one of the cases challenging President Donald Trump's third travel ban, which permanently bars nearly all entry into the United States by citizens of six majority-Muslim nations, as well as North Koreans and a few Venezuelans. The Supreme Court will be reviewing a recent Ninth Circuit Court of Appeals ruling against the travel ban, which concluded that it violates immigration laws enacted by Congress and exceeds the scope of executive power. The ruling also rejected the Trump administration's extreme claim that the president has nearly unlimited power to exclude aliens from the United States, even if it goes against legislation enacted by Congress.

The return of this issue to the Supreme Court is not surprising. Many commentators, myself included, predicted that this was likely to happen as soon as the Supreme Court dismissed as moot two cases challenging Trump's second travel ban order, which Travel Ban 3.0 superseded. That is because Travel Ban 3.0 is vuilnerable to nearly all the same legal challenges as its predecessors, and is in some respects even worse.

The Ninth Circuit decision only addressed claims that the president had violated federal law and exceeded the scope of executive power. It did not consider the other major legal claim against the travel ban: that it violates the First Amendment because it is intended to discriminate against Muslims on the basis of their religion. In October, a federal trial court decision in Maryland ruled that Travel Ban 3.0, like its predecessors, does indeed violate the First Amendment's ban on religious discrimination. That ruling is now on appeal to the US Court of Appeals for the Fourth Circuit, which previously ruled against Travel Ban 2.0 on the same basis. If the travel ban violates the First Amendment, it is unconstitutional even if Congress had authorized it and even if it is otherwise within the permissible scope of executive power.

The Supreme Court's order, issued today, indicates that the justices will consider the First Amendment claim, as well as the statutory and separation of powers issues. If the Court does indeed rule on both, the decisoin could potentially be a major milestone. If the justices rule that the travel ban is illegal because it violates federal immigration law, they could well decide not to address the constitutional issue. But even such a comparatively narrow ruling would be significant, because it would likely conclude that current law bars the president from engaging in nationality discrimination in deciding which aliens to admit, and would require the Court to reject the Trump administration's assertion of nearly unlimited executive power to exclude aliens.

On December 4, the justices issued a ruling staying implementation of lower court preliminary injunctions barring enforcement of Travel Ban 3.0. Some believe this ruling indicates that the Supreme Court will uphold the travel ban. But there are a number of other possible interpretations of the Supreme Court's action.

One somewhat surprising aspect of the Court's decision is that the justices decided to hear the Ninth Circuit case without waiting for the Fourth Circuit to make a decision on the other major case challenging the latest travel ban. It could be that the justices got tired of waiting for the Fourth Circuit to issue its ruling (it is taking longer than expected) or that they think the Fourth Circuit opinion is unlikely to add much to the already extensively developed arguments for and against the travel ban. In my view, the most likely explanation is that the Court's December 4 decision to stay the injunctions was in part premised on the expectation that the Fourth and Ninth circuits would issue their rulings quickly, so as to minimize the potential harm to people kept out by the ban, and their families and associates in the United States. When the Fourth Circuit upset that expectation, the justices chose to act without waiting for the lower court decision to come out. At this point, it is unclear whether the Fourth Circuit will go ahead and issue a decision anyway, or whether it will hold back until the Supreme Court rules on the Ninth Circuit case.

In my view, Travel Ban 3.0 is both unconstitutional and a violation of federal immigration law, for reasons I covered here. In that post, I also explained why the inclusion of North Korea and some Venezuelan government officials does not obviate the anti-Muslim purpose of the ban. I have previously discussed why Trump's various travel bans qualify as unconstitutional discrimination even though they do not cover all the Muslims in the world, and why it is entirely legitimate for courts to consider Trump's campaign statements as evidence of his discriminatory motives. In an amicus brief I coauthored on behalf of a group of several constitutional law scholars when the second travel ban order was before the Supreme Court, we explained why the Bill of Rights - including the First Amendment's ban on religious discrimination - constrains federal power over immigration no less than other federal powers. I also agree with the Ninth Circuit's rejection of Trump's dangerous assertion of nearly unlimited executive power in this field.

Though I hope the justices will rule against the travel ban, I honestly do not know what the Supreme Court will do with this case. My sense is that it could easily go either way. I will have more to say about the issues raised by the return of the travel ban case to the Supreme Court in future posts.

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  • FlameCCT||

    I'm curious Prof Somin, will you be here admitting you were wrong or whining when SCOTUS shoots down the Progressive judicial decisions on Travel Ban(s)?

  • Rev. Arthur L. Kirkland||

    I thought he was merely expressing the libertarian position, much to the annoyance of right-wing authoritarians who appease, if not embrace, bigotry.

  • Mark22||

    I thought he was merely expressing the libertarian position

    The libertarian position is "libertarian societies ought to have open borders". As a libertarian, I fully agree with that.

    The libertarian position is not "social welfare states ought to have open borders". That position is foolish and self-destructive.

    much to the annoyance of right-wing authoritarians

    You're just the traditional Marxist who is trying to destroy free societies by promoting foolish and self-destructive policies, namely for rich Western nations to open their doors to working class migrants who will then proceed to turn those nations into the kind of leftist paradise you desire.

    You're not an annoyance, you're evil, which is why people need to speak out against you.

  • Rev. Arthur L. Kirkland||

    I am an annoyance.

    Especially to right-wing bigots.

    I am content.

  • Mark22||

    I am an annoyance.

    If you were merely an annoyance, people would ignore you. People like you are far worse.

    People speak out against you because "the only thing necessary for the triumph of evil is for good men to do nothing."

  • NToJ||

    "...will you be here admitting you were wrong..."

    Do you think he's either (1) going to retire from the Conspiracy if SCOTUS rules against him or (2) insist that the SCOTUS decision wasn't made? Has Somin ever ignored a SCOTUS decision in that way? Do you think his presence on the Conspiracy is contingent on him being right about every SCOTUS prediction?

    But if you think (1) or (2) are likely to happen, I'm interested in betting against them.

  • Arthur I Kirkland||

    Bull-cow is a coward. He will never admit that he is wrong.

  • aluchko||

    Wrong about what? Did Ilya Somin claim that the Supreme Court is infallible somewhere?

  • JesseAz||

    Ilya... When are you going to comment on the fact that the ban doesn't ban just Muslims? When will you note that 85% of global Muslims are not affected? When will you note that 2 countries removed themselves from the list after agreeing to increased vetting procedures for their people? The difference between countries on that list and not on that list is the level of Intel sharing done in vetting people applying for visas to America. You simply can't get around this fact. And since someone previously argued the visa waiver system of Canada and Europe... Their intelligence agencies work directly with ours, so they provide more information than Iran, Sudan, Syria, north Korea, etc.

    Amazing how Ilya can be near his dozenth lost on the travel ban and not once address actual security concerns of the program in a relevant manner (he has occasionally handwaived the argument).

  • jaydubyou||

    It seems to me that using Ilya's logic, that if the DACA situation reaches resolution without some significant funding for "The Wall," Ilya will argue that indeed the legislation will result in a wall being built--you know--because Trump said that it would. And because Trump wants it so. Disregard the text of the law. Disregard what isn't included in the law--let's all just focus on what Trump said, once upon a time.

    I'm absolutely dumbstruck at this logic and an apparent willful ignoring of what is written in law. It fails every test of reason and logic that I can apply, and yet it continues to be argued.

  • Sarcastr0||

    FFS, no one is buying the argument that the after-the-fact tinkering somehow proves Trump isn't targeting Muslims despite what he and many of his supporters say.

    Indeed, haven't you said a Muslim ban would be legal and good?

  • Sarcastr0||

    Case and point, Brett not helping below.

  • Rev. Arthur L. Kirkland||

    "FFS, no one is buying the argument"

    Your lack of familiarity with the credulity of intolerant goobers is disturbing.

  • Mark22||

    Ilya... When are you going to comment on the fact that the ban doesn't ban just Muslims? When will you note that 85% of global Muslims are not affected?

    He's already commented on that. According to him, if any immigration policy has a disparate impact on a protected group, it is discriminatory and hence not permissible. That's not literally what he argues, but it's what it amounts to.

    Of course, as you point out, rational travel bans necessarily have a disparate impact.

    However, more importantly, neither international law nor the US Constitution even prohibit immigration policy with discriminatory intent. To the contrary, the principle that nations have a right to preserve their national identity and culture when setting immigration policy is pretty much universally recognized.

  • NToJ||

    "When are you going to comment on the fact that the ban doesn't ban just Muslims? When will you note that 85% of global Muslims are not affected?"

    From the OP:

    "...which permanently bars nearly all entry into the United States by citizens of six majority-Muslim nations, as well as North Koreans and a few Venezuelans."

    Unless you are laboring under the impression that all the worlds' Muslims live in the six majority-Muslim nations, or that North Korea and Venezuela are Muslim-majority countries, how could you have missed this comment?

  • Arthur I Kirkland||

    Bull-cow is a liar and a coward. He will not admit that he's a globalist communist.

  • aluchko||

    I suggest we ban all Trump supporters from VC!

    Ok, fine just 10 Trump supporters, and a couple nutjobs, who aren't Trump supporters but are NeoNazis.

    See! Not I'm discriminating against Trump supporters!!!

  • Krayt||

    I'm fine with most of the reasoning -- "We just used 'Muslim' as a shorthand for nations with terrorism!" has a hard road to haul for legitimacy.

    I do have a problem with one aspect of the reasoning (which I don't know if it comes into play for 3.0.) The judge in one case said basically, in addition to all else, "...and to top it off, his base reasoning for the ban is insufficient!"

    Well, that certainly seems like the judicial branch deciding to agglomerate to itself a shotgun position over the constitutionally-granted direct powers of the other branches.

  • Brett Bellmore||

    "We just used 'Muslim' as a shorthand for nations with terrorism!" has a hard road to haul for legitimacy."

    Yeah, but given the actual real world relationship between Muslim nations and international terrorism, you start about 3/4s of the way down that road before you start hauling. That's a brute fact that Ilya is desperate to ignore: If you create a list of countries to bar immigration from on the basis of being terrorist sponsors and/or not cooperating with vetting, it's unavoidably going to be a list of Muslim nations.

    It's like saying that a police chief who ran on "dealing with black gangs" is foreclosed from doing anything about the local gang problem, because it's racist to concentrate on black gangs only, in a town that only has black gangs.

  • Sarcastr0||

    Yeah, I would still wonder what point you are trying to get across by specifying black when it's redundant in that town.

  • Rev. Arthur L. Kirkland||

    You may be too polite to express certainty, but I think you'd know.

    Me? I lost my taste for political correctness.

    I consequently call a bigot a bigot; a Muslim ban a Muslim ban; a deplorable, can't-keep-up backwater a deplorable, can't-keep-up backwater; and a half-educated, intolerant, superstitious, downscale, disaffected, authoritarian right-wing loser an ardent Trump supporter.

  • Brett Bellmore||

    I would wonder what point you were trying to obscure by avoiding mentioning it, and getting mad over it being mentioned.

    As a general rule, it should be permissible to acknowledge reality.

  • aluchko||

    It's like saying that a police chief who ran on "dealing with black gangs" is foreclosed from doing anything about the local gang problem, because it's racist to concentrate on black gangs only, in a town that only has black gangs.

    It's racist when the police chief starts harassing a prominent black neighbourhood that has absolutely no history of gang problems while ignoring non-black gangs elsewhere.

    That's why we can also call Trump racist for including Iran which has no significant history of terrorism and practices a type of Islam largely unaffected by terrorism. He does this while ignoring the terrorism committed against Muslims in Myanmar and acts committed against Muslims in his own country.

    In both cases the truth is revealed that the actual thing being targetted is not gangs or terrorism, it's race and religion.

  • An Owl Named Dur||

    "That's why we can also call Trump racist for including Iran which has no significant history of terrorism and practices a type of Islam largely unaffected by terrorism."

    What the hell?!?

  • Mark22||

    I'm fine with most of the reasoning -- "We just used 'Muslim' as a shorthand for nations with terrorism!" has a hard road to haul for legitimacy.

    But that's not the criterion. The criterion is how difficult it is to vet visitors/immigrants from those countries. The discrimination is against countries with governments that have poor record keeping and/or have governments that are hostile to the US. Those happen to be overwhelmingly Islamic. Governments of Christian countries (most of Europe) overwhelmingly have good record keeping and are not hostile to the US. That's why you see a disparate impact of immigration rules that are based on religiously neutral considerations.

    (Of course, let's say it again: any government, including the US government, is perfectly free to discriminate based on national origin and religion when it comes to immigration. Almost all other governments do just that.)

  • AmosArch||

    >>>
    I honestly do not know what the Supreme Court will do with this case. My sense is that it could easily go either way.
    >>>>>>

    Code for probable smackdown by SC and I know it but don't like it.

  • AmosArch||

    Ilya, a few other Conspirators, and the last Libertarian Presidential candidate are among a subfaction of 'libertarians' who hold a strange conception of libertarianism I've always found fascinating. Apparently to them a minimalist government doesn't care about maintaining its territorial integrity but instead dedicates all its attention toward punishing private cake bakers who don't bake cakes for gay weddings.

  • Brett Bellmore||

    "LIberalitarianism"; The libertarian movement foolishly responded positively to the liberal suggestion of an alliance, threw open the gates, and the march through the institutions overtook them. At least that's my take on it. A large faction in the libertarian movement are only now interested in pursuing the implications of libertarianism which don't conflict with liberalism.

    Partly this is a consequence of the campaign "reform" laws that got passed back in the 80's and 90's, which were carefully crafted to make sure third parties wouldn't be viable. This had the effect of diverting sensible libertarians out of the LP and into the major parties, where there was still some hope of having influence on the government.

    You take the sensible people out of a movement, you have to expect the movement to become a bit wacky.

  • Sarcastr0||

    While I concur with the general sentiment that libertarian has become less a well-defined term and more of a brand, that doesn't make purity arguments any less fallacious.

    It is interesting that 'libertarian' gained sufficient cache that our society sought to commoditize it.

    I would be interested in a bit more about the campaign reform laws of the 80s and 90s. I was taught that the fundementals of our first-past-the-post federated representative system heavily favor two major parties. But that was like a sidebar in an American History textbook in college, and I'm not up on game theory enough to know the specifics.

  • Brett Bellmore||

    Well, first past the post systems do stabilize at having two major parties, but the Republicans still managed to displace the Whigs. First past the post is an obstacle, but it's not an impossible obstacle to surmount if one of the major parties leaves a significant part of public opinion unrepresented. At least, it's not insurmountable if the rules treat all parties the same.

    To give you an example of what we faced, once we started getting some traction, ballot access rules were updated to become much harder to comply with. If you were a major party, you had automatic ballot access, (And were put on the ballot even if you forgot to pay the filing fee!) but if you were a minor party, you had to collect a huge number of petition signatures.

    It's like letting some of the runners in a marathon start still fresh, while requiring others to run a marathon just to reach the starting line already exhausted. Even Perot with all his money made it onto the ballot only because they waived the rules. Didn't waive the rules for us, though...

    And, of course, when the League of Women Voters decided that the LP candidate should be included in the debates, the major parties responded by taking the debates away from them, and creating a bipartisan commission to handle them. Which, strangely enough, didn't share that inclusive view.

  • Brett Bellmore||

    When the LP candidate qualified for matching funds, the FEC changed the rules so we didn't get them anyway.

    They put together a media organization to centralize reporting the election results. Guess whose votes it didn't bother counting and reporting?

    I could go on and on; Every campaign "reform" of the last 30-40 years has had the not accidental effect of screwing over third parties.

    Under the present campaign laws and rules, the Whigs would have survived the GOP challenge. It wouldn't even have been close.

    I think that's part of why the major parties are getting so awful now: They know they've taken away the voters' ability to replace them.

  • Mark22||

    It is interesting that 'libertarian' gained sufficient cache that our society sought to commoditize it.

    You could say the same about white supremacists, socialists, and communists. In a two party system, every percentage point counts, and parties try to appeal to fringe groups by any means possible. Usually, that involves both outright lying and "we're only 95% awful, while the other party is 98% awful" arguments.

    Mainstream progressives and "liberals" in the US have always hated libertarianism and continue to do so. They denounce libertarians as white supremacists, slavers, pimply faced basement dwellers, and heartless moneybags. Don't kid yourself for a moment that they have moved an Angstrom in the direction of libertarianism.

  • Sarcastr0||

    Your political allegiance would seem more conservative than libertarian to me, AA.

    But (pace Somin's idiosyncratic take) essentializing national borders as a litmus test for proper libertarianism seems quite a bit more strange than ignoring the issue.

  • Mark22||

    essentializing national borders as a litmus test for proper libertarianism

    As a libertarian, I'm all for open borders in the context of a libertarian society.

    But Somin advocates opening borders under the conditions of a social welfare state in which the government controls nearly 40% of the economy. That is not a libertarian policy. In fact, what it is closest to is the kinds of attacks on liberal democracies that came from socialists and communists ("we flood them with international workers and then take over").

  • Brett Bellmore||

    Or, as I like to put it, path dependence. The libertarian movement understood path dependence at one time, realized that open borders might be great if you had a night watchman state, but were suicide if you had a welfare state.

    Just because open borders is on the list of things libertarians hope to accomplish eventually, doesn't mean it makes any sense to do it first. Even if people who aren't remotely libertarian will help you accomplish it for their own reasons.

  • Mannix||

    I predict Trump will come out on top on this issue.

  • Rev. Arthur L. Kirkland||

    Did you ask Stormy Daniels? Michael Cohen? Melania? Melania's pimp? Some Russian watersport specialist?

  • MikeR613||

    Don't know how they'll vote on the travel ban. But I really really hope that they crack down on nation-wide injunctions.

  • Azathoth!!||

    As far as I am aware, the word 'muslim' doesn't appear in these orders., so the idea that they violate first amendment issues is ludicrious on it's face.

    That entire concept relies solely on things said during the campaign and things that jurists infer that Trump is thinking.

    And not on the actuality of the order.

  • Mark22||

    I think Somin's legal and constitutional arguments regarding borders immigration are ridiculous and creating new "rights" out of thin air. Despite his pretenses of libertarianism, in practice, they amount to little more than kind of working class open borders arguments advanced by socialists and communists, the kind of arguments intended to bring down Western nations for the past century.

    But constitutionality and political motivations don't even matter. The real question is what kind of country Somin's vision would lead to. I'm an immigrant to the US. I chose the US because I wanted to live in a small government, economically free, protestant culture. If the US turns "majority minority", I'm leaving: that kind of social makeup is a prescription for perpetual violence, oppression, and corruption. No country can be successful under those conditions, and no other country is foolish enough to self-destruct in this way.

  • Presskh||

    Mark22, you hit the nail on the head. Bringing down the US is the ultimate goal of these marxists. Unfortunately, thanks to Obama, we now have many Marxist Federal judges, particularly on the ninth circuit, who have no problem blatantly ignoring the constitution and federal law. Moreover, our public schools, universities, many large corporations, and most of the media have been taken over by the far left - while Trump is making some progress in beating them back, I fear the damage is much too great and we will ultimately devolve into a socialist haven. What other countries have you considered moving to?

  • Mark22||

    Here is a suggestion for Professor Somin: why don't you practice what you preach? Institute worldwide open admissions at George Mason with full scholarships to anyone who wants one. That is, any applicant from anywhere in the world, regardless of academic credentials or ability to pay, gets admitted to GMU and is given a full scholarship for the duration of their studies as long as they don't become felons, no questions asked. And, the way US visas work, those students would even get visas. Surely, educators as skilled, wise, and tolerant as you and your colleagues should be able to mold the highly diverse student body you will be receiving into valuable contributors to the US economy. Diversity is a strength, isn't it?

    If Somin is not willing to do this to his university, why should we listen to him when he suggests doing the same to the country?

  • NToJ||

    "Institute worldwide open admissions at George Mason with full scholarships to anyone who wants one."

    What's up with the "full scholarships to anyone who wants one"? Legal admission to the United States doesn't mean you get to be CEO of Microsoft. Anyway, George Mason does practice what is being preached; it accepts international students on the same bases as domestic ones.

  • Mark22||

    What's up with the "full scholarships to anyone who wants one"? Legal admission to the United States doesn't mean you get to be CEO of Microsoft

    No, but it does give you the guarantee of a lot of costly basic government services and social welfare payments.

    Anyway, George Mason does practice what is being preached; it accepts international students on the same bases as domestic ones.

    No, it does not. The equivalent of "open borders" is "worldwide open admission with scholarship for everybody", not "worldwide highly selective admission".

  • Kroneborge||

    BS. Not only does the travel ban not target all muslims it doesn't even target most of them. The travel ban only applies to about 12% of the world's muslims. How 12% equates into a muslim ban is beyond me.

  • Arthur I Kirkland||

    Bull-cow doesn't want any borders. He wants a one-world communist government.

  • Presskh||

    Last time I checked, first ammendment protections applied to US citizens and not to citizens of foreign countries. And yes, the current President does have broad powers over immigration, just like Obama, Bush, and Clinton did. Reason has become a haven for POS leftist hacks.

  • Larvell Blanks||

    So (if we believe Eugene) legally prohibiting people from holding certain jobs unless they pay money to unions to subsidize political activity they disagree with is NOT an abridgement of their freedom of speech, while (if we believe Ilya) barring entry to foreigners from certain countries IS a prohibition on the free exercise of religion (but only if the majority of the people in most of those countries are of a certain religion, and we suspect that the president, in the deepest recesses of his heart, doesn't particularly like that religion). That is a conception of the First Amendment I find unsatisfying.

  • Jgalt1975||

    My two cents on the issue is that I predict the Court finds no violation of the Constitution by a 5-to-4 vote (Republican appointees in the majority finding that foreign nationals overseas and not yet admitted to the United States have no constitutional rights), but does find it in violation of the statutory provisions on the subject by a 6-to-3 vote (Democratic appointees joined by Roberts and Kennedy in the majority finding the travel ban exceeds the authority granted to the President by Congress, which is the body with plenary power over immigration).

  • KevinP||

    What current immigration law says about the travel ban:


    8 U.S. Code § 1182 (f) Suspension of entry or imposition of restrictions by President

    Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

    https://www.law.cornell.edu/uscode/text/8/1182

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