US Supreme Court Uphold Partial Travel Ban
In January 2017 and again in March 2017, President Trump issued executive orders imposing a 90-day travel ban on the citizens of six countries (Iran, Libya, Somalia, Sudan and Syria) plus a 120 day suspension on the admission of refugees. In short order, complaints were filed in federal court.
The lower courts responded by putting in place nationwide injunctions while the cases were pending decisions on the merits of the complaints. The injunction meant the government could not suspend processing of visas for refugees and the citizens of the six countries included in the travel ban. The government appealed those injunctions to Circuit Courts, but the injunctions were upheld. The government made a final appeal to the Supreme Court.
On June 26, 2017, the US Supreme Court issued a two-part decision on the travel ban. See U.S. Supreme Court decision on Trump vs International Refugee Assistance Project.
The first decision was to agree to hear the case in the Fall 2017 Term. This is an important decision because it means the Supreme Court will be considering the breadth of a President's powers at least in relation to immigration law.
Traditionally, the President has very broad powers regarding immigration laws. For example, President Obama created DACA (Deferred Action for Childhood Arrivals) and DAPA (Deferred Action for Parents) by executive order. Republicans complained that he overreached with those broad powers. Like President Trump's travel ban, President Obama's executive order on DAPA was the subject of a complaint to the federal courts. That complaint was recently rendered moot when the government rescinded the executive order for DAPA. Had the decision not been rescinded, then eventually the US Supreme Court would have been considering the same issues that it will now consider when it reviews President Trump's travel ban.
The second decision was to partly stay the injunction. The injunction remains in place for individuals who can show ties to the U.S., e.g. they have relatives who are US citizens or lawful permanent residents or they have a job offer from a US employer or they have an acceptance letter from a US college/university. They will still be able to move forward with their visas, even if they are refugees.
The decision to partly stay the injunction is a partial victory for President Trump.
The President argues the travel ban is necessary for national security purposes to allow the review of vetting procedures. But is it really necessary? Aren't procedures already stringent enough? And does the ban accurately reflect the countries where terrorists are most likely to come from?
Consider:
The lower courts responded by putting in place nationwide injunctions while the cases were pending decisions on the merits of the complaints. The injunction meant the government could not suspend processing of visas for refugees and the citizens of the six countries included in the travel ban. The government appealed those injunctions to Circuit Courts, but the injunctions were upheld. The government made a final appeal to the Supreme Court.
On June 26, 2017, the US Supreme Court issued a two-part decision on the travel ban. See U.S. Supreme Court decision on Trump vs International Refugee Assistance Project.
The first decision was to agree to hear the case in the Fall 2017 Term. This is an important decision because it means the Supreme Court will be considering the breadth of a President's powers at least in relation to immigration law.
Traditionally, the President has very broad powers regarding immigration laws. For example, President Obama created DACA (Deferred Action for Childhood Arrivals) and DAPA (Deferred Action for Parents) by executive order. Republicans complained that he overreached with those broad powers. Like President Trump's travel ban, President Obama's executive order on DAPA was the subject of a complaint to the federal courts. That complaint was recently rendered moot when the government rescinded the executive order for DAPA. Had the decision not been rescinded, then eventually the US Supreme Court would have been considering the same issues that it will now consider when it reviews President Trump's travel ban.
The second decision was to partly stay the injunction. The injunction remains in place for individuals who can show ties to the U.S., e.g. they have relatives who are US citizens or lawful permanent residents or they have a job offer from a US employer or they have an acceptance letter from a US college/university. They will still be able to move forward with their visas, even if they are refugees.
The decision to partly stay the injunction is a partial victory for President Trump.
The President argues the travel ban is necessary for national security purposes to allow the review of vetting procedures. But is it really necessary? Aren't procedures already stringent enough? And does the ban accurately reflect the countries where terrorists are most likely to come from?
Consider:
- Refugees already undergo rigorous screening. See US Department of State screening process description. The screening typically takes 18 to 24 months. The screening takes place outside the U.S. while people live in refugee camps. Living conditions in refugee camps are often harsh. Between 2001 and 2015, the US admitted about 750,000 refugees and only 2 have subsequently been charged with terrorism offenses.
- A conservative policy institute, The Heritage Foundation, did a review on U.S. terrorist plots between 2001 and 2010. The analysis considered 60 plots and determined 49 were "homegrown," i.e. not organized by individuals who were foreign born. The plots involved 154 individuals, of whom only 4 came from any of the six countries currently subject to the travel ban. Of the 154 individuals, more were from the UK than any other country except the U.S. Thirty-three were British citizens, but the UK is not included in the travel ban.
- Another policy institute, The New America Foundation, compiled data on 499 known extremists in a report on terrorism since 2001 and found that 64% were born in the U.S. and another 16% were naturalized U.S. citizens. Those who were naturalized U.S. citizens typically came to the U.S. as infants or young children.
There are no simple answers to the issue of how to manage terrorist threats, but the approach favored by the Trump Administration does more to inflame fears directed at certain groups (i.e. refugees, people from certain predominantly Muslim countries) and does not provide a measured, carefully thought through, rational, data-driven strategy.
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