Wednesday, February 8, 2017

Federal Appellate Court Hears Arguments About Travel Ban

Issued on January 27, 2017 just a week after President Trump took office, Executive Order 13769 has disrupted travel and drew protests at the nation’s airports by suspending entry for people from seven predominantly Muslim countries and limiting the nation’s refugee program. It has also engendered an onslaught of litigation in almost every federal circuit in which various stakeholders have sought to enjoin and overturn the Executive Order on the basis that it violates immigration laws and the Constitution.

Yesterday, the U.S. Court of Appeals for the Ninth Circuit heard arguments in State of Washington v. Trump, the case that has become the epicenter of the challenge when a Seattle federal court issued a nationwide injunction barring enforcement of Executive Order. The case is in its earliest stages, and the question for the Ninth Circuit yesterday was a narrow one: Should it stay the district court’s temporary restraining order and reinstate the travel ban while the case proceeds? The Executive Order suspended travel from seven mostly Muslim countries and limited the nation’s refugee program. The ruling challenged by the Department of Justice, issued Friday by a federal district court in Seattle, has allowed previously barred travelers and immigrants to enter the country.

The arguments focused on preliminary questions, including whether the states have suffered the sort of direct and concrete injury that gives them standing to sue. But the core questions are whether the Executive Order is constitutional and whether it runs afoul with statutory authority by excluding some categories of people from the United States. In its defense of the Executive Order, the Department of Justice stated that courts should give great deference to the president’s national security determinations in deciding whom to let in. The State of Washington claims due process and equal protection principles, along with the First Amendment’s protection of religious liberty, make the travel ban unlawful.

In issuing the Executive Order, President’s basis was predicated on national security concerns, particularly the fear that terrorists will use any means possible to enter the United States. The Executive Order, however, effectively alters immigration policy in significant respects:
  • Seven-nation Travel Ban: for a period of at least 90 days, nationals of seven nations - Syria, Libya, Iran, Iraq, Somalia, Yemen, and Sudan - are barred from entering the United States.
  • Potential Expansion of Travel Ban: the Executive Order indicates that this entry bar could be lengthened, and may be expanded to include individuals from any country that is determined, based on unspecified criteria, not to provide sufficient in- formation to the United States.
  • Waivers: the Executive Order permits the Secretaries of State and Homeland Security to exercise discretion in issuing visas to nationals from the seven affected countries “on a case-by-case basis.”
  • Refugee Suspension: for a period of at least 120 days, the U.S. is suspending the Refugee Admissions Program. If the Refugee Admission Program resumes, the Secretary of Homeland Security is to “prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.”

The Executive Order’s sudden shift in immigration rules governing entry into the U.S. has caused significant concern by businesses. Over 100 amicus briefs were filed in the case explaining that the travel ban is a bad idea because the Executive Order will make it more difficult and expensive for U.S. companies to (1) recruit, hire, and retain some of the world’s best employees, (2) to compete in the international marketplace, and (3) it will disrupt ongoing business operations. Although institutions of higher education did not file an amicus brief in this case, they too share similar concerns as demonstrated in Louhghalam v. Trump (U.S. District Court for the District of Massachusetts), a parallel case in which several Massachusetts based universities have sought to intervene in litigation over the travel ban. In particular, several Massachusetts’s institutions of higher education (i.e., Boston College, Boston University, Brandeis University, Harvard College, Massachusetts Institute of Technology, Northeastern University, Tufts College, and Worcester Polytechnic Institute) are concerned that the travel ban will not only stifle the free flow of ideas and education across border but obstruct the pipeline of the most talented students and scholars from around the world, who bring with them unique skills and perspectives that inure to the benefit of their classmates, colleagues, and society as a whole, and therefore, will not be able to remain the successful institutions of higher learning that they are today.

The Ninth Circuit is expected to issue its decision in the coming days. No matter how the United States Court of Appeals for the Ninth Circuit rules — in a decision that is expected within days — an appeal to the U.S. Supreme Court is likely. The U.S. Supreme Court, however, remains short-handed and could deadlock. A 4-to-4 tie in the U.S. Supreme Court would leave the appeals court’s ruling in place.

We will apprise you of developments in this case. Please let us know if you have any questions about the issues or how it may impact your operations.