Supreme insights from the travel ban

OCTOBER 2017 TERM / APPELLATE ZEALOTS

The travel ban litigation can make your head spin. Nearly every week for the last six months courts have issued decisions dealing with some portion of President Donald Trump's executive order on immigration. While the lower courts have uniformly blocked the ban, the U.S. Supreme Court has reversed at least some portion of those decisions three times -- and on Sunday the administration released yet another order whose legality has yet to be tested.

To recap the highlights, when Trump first issued an executive order in January barring entry to the United States from seven predominantly Muslim countries, airports across the globe were thrown into disarray. Several district courts issued orders enjoining enforcement of the travel ban, and the 9th U.S. Circuit Court of Appeals upheld the injunction. Trump tweeted "SEE YOU IN COURT" to the 9th Circuit, but then withdrew the order rather than seek Supreme Court review. Instead, Trump issued a new executive order with what he described as a "watered-down" ban that applied to six countries, contained some token attempts at justification, and took out religious preferences that benefited Christians. District courts again issued injunctions against the new ban, and two courts of appeals affirmed those injunctions -- the 4th Circuit held the ban violated the establishment clause by intentionally discriminating against Muslims, and the 9th Circuit held the ban exceeded the immigration powers statutorily delegated to the president by Congress.

The fast-paced litigation provides some takeaways about Supreme Court practice. First, the Supreme Court has absolutely no problem rejecting the opinions of lower courts, even when all those courts agreed. Before the case first got to the Supreme Court the litigation had been a string of wins for the challengers. The president had won virtually nothing. But the government then petitioned the Supreme Court, and in a June 26 per curiam order the court granted certiorari and lifted the injunction as to travelers without a "bona fide" connection to the United States. This means some portions of the ban can be enforced until the Supreme Court decides the merits.

Second, even though it's the final authority, Supreme Court decisions can raise more questions than they answer. The Supreme Court's June order held that the relationships of the petitioners in the litigation -- including a mother-in-law of a U.S. citizen -- qualified under that new test, but otherwise left the standard undefined. The Trump administration promptly announced that grandparents, grandparents, grandchildren, nieces, nephews, aunts and uncles of U.S. citizens don't have a close enough relationship to qualify. The administration's new guidance also banned the entry of refugees with a formal invitation and sponsorship from a U.S. refugee organization. As you could likely guess, the challengers took a different view of what constitutes a bona fide relationship, and went back to the district courts again, resulting in two more quick trips to the Supreme Court.

Third, know when to hold 'em and when to fold 'em. In the latest 9th Circuit hearing, the judges were, to put it politely, skeptical of the Trump administration's position that grandparents and similar family members don't qualify under the Supreme Court's test. "Like what universe does that come from?" asked one of the judges at oral argument. The government decided to cut its losses and only seek further review of the 9th Circuit's injunction as to refugees -- potentially sensing that the 50- to 80-year-olds sitting on the Supreme Court weren't the best demographic for their argument that grandparents should be excluded. That pivot allowed the Trump administration to claim a complete victory from the Supreme Court in the most recent orders. The Supreme Court allowed the refugee ban to go into effect "pending further order of this Court," effectively preventing the lower courts from further attempts to enjoin that portion of the ban.

Fourth, focus on the endgame. The last two Supreme Court orders were mostly victories for the Trump administration, but those skirmishes were relatively minor disputes over the status of the ban for the next few months. The heart of the case is whether the travel ban itself is lawful, and oral argument on that question was scheduled to be heard by the Supreme Court Oct. 10 (Trump v. International Refugee Assistance Project, 16-1436, consolidated with Trump v. Hawaii, 16-540). To prevail the administration must show that the order is statutorily authorized, and that it doesn't violate the constitution, and that the issue is not moot. Each of those issues is complex and difficult -- so it should come as no surprise that the administration withdrew the current ban and issued a new executive proclamation on Sunday, September 24. Under the new ban, most citizens from Chad, Iran, Libya, North Korea, Syria, Yemen, and Somalia, and some citizens from Iraq and Venezuela, will be banned or restricted from entering the United States indefinitely. This change could moot some portions of the pending Supreme Court case--although other portions, like the refugee ban, are unaffected--and will almost certainly start a fresh wave of litigation. The Supreme Court took the case off the argument calendar on Monday, and ordered additional briefing on the effect of the new order.

Finally, even appellate litigation can be unpredictable and messy. The challengers to the travel ban obviously knew they were signing up for intense, high-profile litigation, but three trips to the Supreme Court within three months, and a fourth appearance scheduled for next month, is a lot even for a high stakes case. As Neal Katyal, counsel for the challengers, summed things up in a tweet, "It went up and down to the Supreme Court, trial court, and Ct of Appeals many times. Many emergency briefs. Many late nights." And that's only the beginning.

APPELLATE ZEALOTS is a monthly column on recent appellate decisions written by the attorneys of the California Appellate Law Group.

**This article has been updated to include information about the revised travel ban announced by the Trump administration on Sunday, Sept. 24, 2017. An earlier version of this article appears on Page 1 of the Sept. 25, 2017, Los Angeles and San Francisco Daily Journals.