by Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar & Clinical Professor of Law; Director, Center for Immigrants’ Rights Clinic, Penn State Law
On June 26, the Supreme Court agreed to hear cases involving the travel ban and also reinstated portions of the ban. Specifically, the Court will hear the case during the October 2017 term and also allow sections 2 and 6 of the travel ban to be applied to foreign nationals “who lack any bona fide relationship with a person or entity in the United States.” This outcome is both disappointing and confusing.
The travel ban (sometimes known as a Muslim Ban) refers to an Executive Order signed by President Donald Trump on March 6, 2017. This Executive Order is the second of its kind and among other provisions, suspends the entry of foreign nationals from Iran, Libya, Sudan, Somalia, Yemen and Syria for a period of 90 days; freezes the refugee admissions program for a period of 120 days; and slashes the refugee numbers by one half. The litigation around Muslim Ban 2.0 was immediate and resulted in two federal court decisions blocking the most controversial portions of the travel ban. These decisions were upheld by appellate courts. On June 1, the government filed papers in the Supreme Court appealing these decisions and also asking it to reinstate the travel ban.
The June 26 decision opens with a history of the travel ban and the constitutional and statutory arguments made before the federal courts. The prevailing constitutional argument raised was that the travel ban violates the Establishment Clause of the First Amendment. The primary statutory argument surrounded whether the travel ban violates a section of the Immigration and Nationality Act that prohibits discrimination with regard to the issuance of immigrant visas.