This summer, just before the end of the last term, the Supreme Court weighed in on President Trump’s travel ban. It lifted the travel prohibitions for certain foreign nationals, but left the “temporary suspension of entry for nationals of countries of particular concern” in place. Thus, the government’s ability to prohibit entry for those foreign nationals without a “bona fide relationship with a person or entity in the United States” stood. We discussed the Court’s opinion in June.
New executive order
Ever persistent, on September 24, 2017, the administration issued its third executive order pertaining to incoming foreign nationals, the Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats (Proclamation). Subtitled Enhancing Vetting Capabilities And Processes For Detecting Attempted Entry Into The United States By Terrorists Or Other Public-Safety Threats, the Proclamation was the result of the review directed by the March 6, 2017 executive order “of whether, and if so what, additional information would be needed from each foreign country to assess adequately whether their nationals seeking to enter the United States pose a security or safety threat.”
The September 24 Proclamation declared that after the review, a “small number of countries — out of nearly 200 evaluated — remain deficient at this time with respect to their identity-management and information-sharing capabilities, protocols, and practices. In some cases, these countries also have a significant terrorist presence within their territory.”
Thus, the Proclamation restricts “the entry of nationals of 7 countries found to be ‘inadequate’”, and therefor still a security threat: Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. The previous list consisted of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.
Another difference is that while the previous executive order capped refugee admissions at 50,000 for 2017, the September 24, 2017 one does not dictate an upper limit. But on September 29, 2017, President Trump announced a new maximum of 45,000 refugees for fiscal year 2018.
On September 25, 2017, in the litigation involving the cases State of Hawaii, et al. v. Trump, Supreme Court docket 16-1540, and International Refugee Assistance Project v. Trump, Supreme Court docket 16-1436, the Court ordered the parties to brief the question of whether the issues that existed prior to the September 24, 2017 Proclamation were rendered moot by that Proclamation. Those briefs were due last week.
Not long after, on October 10, 2017, the Court ordered the Fourth Circuit to dismiss the Fourth Circuit lawsuit as moot. It has not yet done the same for the Ninth Circuit case, State of Hawaii, et al. v. Trump, because some of those questions are technically moot at this time.
As for the new travel ban, so far there are three suits challenging the latest proclamation. The first two are complaints that the previous litigants have amended, State of Hawaii, et al. v. Trump, and International Refugee Assistance Project v. Trump. The Council on American-Islamic Relations filed its own suit on October 10, 2017.
In discussing the situation as it currently stands, SCOTUSBlog reminded its readers that provisions that the Hawaii case challenged are still in effect, but will expire this month. However, even if the Court does order the Ninth Circuit to dismiss the case, as it did with the fourth Circuit, it is “probably not done with the issues at the heart of both cases – whether the Trump administration’s restrictions on entry into the United States violate the Constitution or exceed the president’s authority. Those questions are likely to return to the court soon, perhaps even this term.”
SCOTUSBlog pointed to a Washington Post opinion columnist who contends that “Travel Ban 3.0 is vulnerable to most of the same legal challenges as the previous version.” That is, whether the latest ban is impermissibly motivated by the desire to target a particular religion, and whether it exceeds the president’s authority. The columnist, a constitutional law scholar and co-author of an amicus brief in the case International Refugee Assistance Project v. Trump, further argues that “the president’s case continues to be undermined by the extreme weakness of the supposed ‘security’ rationale for the travel ban.”
More specifically with respect to the weakness of the administration’s security rationale, a Cato Institute piece reasons that, “from 1975 through the end of 2015, zero Americans have been killed by foreign-born terrorists on U.S. soil who hail from any of the eight countries on the new executive order. Only nine terrorists from those countries have carried out an attack or actually been convicted of planning an attack on U.S. soil during that time. About 42 percent of all convictions for terrorism-related offenses are for non-terrorist crimes and very few of them could even be considered vetting failures.”
The author of the Cato Institute piece stresses that the risks outweigh the rewards with executive orders “like these.” For instance, “The risk of being murdered in a terrorist attack committed by a foreigner on U.S. soil from 1975 through 2015 was about 1 in 3.6 million per year.”