Travel Ban 3.0: Third Time the Charm?

The Supreme Court has granted the federal government’s request to fully enforce the set of restrictions known as the “travel ban” while the Appeals Courts hear the merits of the ban. The Court ruled 7-2 that individuals from eleven countries could be prevented from entering the country. There’s a lot of confusion about how the ban works, what exceptions exist, and the arguments being made. The full order can be found here. Here’s a quick FAQ to break everything down:

Which Countries Are On the List?

Individuals from the following eleven countries are prohibited from entering the United States: Iran, Libya, Yemen, Somalia, Syria, North Korea, Venezuela, and Chad. That means the U.S. will not approve Visas for people traveling on passports from those eleven countries.

Who Does the Ban Apply To?

The third version of the travel ban suspends the following visas:

Chad – Only B-1 business and B-2 tourist visas are suspended. All others, including F and M visas for students and H visas for temporary workers, are not suspended.

Iran – Only F and M student visas and J visitor visas are permitted to enter the country.

Libya – Only B-1 business and B-2 tourist visas are suspended. All others, including F and M student visas and H visas for temporary workers, are not suspended.

North Korea – All entry is suspended.

Syria – All entry is suspended.

Venezuela – The B-1 business and B-2 tourist visas of certain government officials and agencies from Venezuela are suspended.

Yemen – Only B-1 business and B-2 tourist visas are suspended.

Somalia – All entry of immigrants is suspended (immigrants are individuals who intend to permanently reside in the United States).

Are There Any Exclusions or Exceptions?

There is a difference between an exclusion and an exception. An exclusion occurs when the law is written in a way so that the law doesn’t apply to that person. For example, the ban on Chad and Yemen suspends business and visitor visas. Student visas are not included in the suspension. Therefore, students are excluded from Chad and Yemen suspensions.

An exception is when the law does apply to that person, but the law suspends the application to that person. The travel ban currently has the following list of exceptions:

1. Any lawful permanent resident of the United States.
2. Any foreign national admitted into the United States who entered between the first and second versions of the travel ban and the current one (paraphrased).
3. Any foreign national who has a document other than a visa that is valid between the first and second versions of the travel ban and the current one (paraphrased).
4. Dual citizens traveling on a passport issued by a country not on the travel ban list.
5. Any foreign national traveling by a diplomatic visa.
6. Any foreign national granted asylum by the United States or protection by the Convention against Torture, or any refugee already in the United States.

For example: Although business visas from Chad are suspended, a duel citizen of Chad and France could claim an exception to the business visa ban if that person also had a passport issued by France. In contrast, a person holding a student visa from Chad would still be allowed to enter regardless of dual citizenship because that person was excluded from the ban.

What are the Differences between Each Version of the Travel Ban?

The first version, Executive Order 13769, was signed by Mr. Trump on January 27, 2017. It banned individuals from seven different countries, all with Muslim majorities. The ban would have lasted for 90 days for non-refugees and 120 days for refugees from those countries. The ban left a loophole from refugees of “religious minorities.” This version was suspended by federal judges and the administration rescinded the order a few days later.

The second version, Executive Order 13780, was signed in March 16, 2017. This version removed Iraq from the list and dropped the “religious minority” exception, but kept the 90 days non-refugee and 120 day refugee expiration dates. Federal judges suspended this second version until the Supreme Court allowed a partial ban to go into effect on June 26. The Supreme Court added a “bonafide” exception, whereby persons would be allowed to enter the U.S. if they had a genuine and sincere reason to be in the country, including family.

The third travel ban, Proclamation 9645, ended the expiration dates, removed Sudan from the list, and added North Korea and Venezuela. The Supreme Court’s December 4^th order allows this version of the ban to go into full effect without the bonafide exception.

Can a District Court Judge Stop an Executive Order Nationwide?

The first two travel bans were enjoined by District Courts in Hawaii and Washington State.  District Court judges who issued the nationwide injunctions, the lowest judges in the federal judiciary, have been criticized for exceeding their powers. It seems absurd that the lowest member of the judicial branch can stop the highest member of the executive branch.

Federal Rule of Civil Procedure 65 gives District Court judges the power to issue preliminary injunctions before trial to ensure that the status quo remains while the case is being heard. There is no restriction as to the scope of the injunctions. The Supreme Court writes the Federal Rules of Civil Procedure subject to Congressional approval. Since neither the Supreme Court nor Congress has seen fit to narrow the scope of the District Court judges’ powers as to injunctions, the judges’ retain the power to issue nationwide injunctions on behalf of the Supreme Court.

The Trump Administration is not the first one to complain about the power of District Court judges. The Obama Administration also filed appeals when judges in the Fifth and Sixth Circuits blocked President Obama’s deferred action programs. The judges in those circuits upheld the District Court judges’ right to issue nationwide injunctions.

As the Fifth and Sixth Circuit Appeals Courts pointed out, it makes sense to issue nationwide injunctions in immigration cases. If the injunction were merely limited to the state in which the District Court sits or to the Circuit Court hearing the case, the immigrant could simply choose a different state or circuit to go to. Since immigration is a national issue and one of the parties is usually the federal government, a nationwide injunction would preserve uniformity of federal immigration law. The federal immigration policy of Hawaii cannot be different from the federal immigration policy of Texas or New York. Nation-wide injunctions are the only way District Courts can preserve the status quo without creating different federal immigration policies for different states.

So is the Travel Ban Constitutional Now?

Although the Supreme Court has lifted the lower court’s ban on the travel ban, the Court has yet to rule on its constitutionality. Given that the decision to lift the injunctions was a 7-2 decision, the ban does stand a decent chance of surviving. However, both the Ninth Circuit and the Fourth Circuit need to hear arguments and render separate rulings before the Supreme Court will hear arguments. If the Supreme Court decides to hear the case, a final ruling on the travel ban will likely come out in middle to late 2018.