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Travel Ban Litigation Update - Spring 2018 Newsletter

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Litigation Update

The U.S. Supreme Court heard oral argument in the Travel Ban 3.0 case (Trump v. Hawaii) on Wednesday, April 25, 2018. The Court is expected to render its decision by the end of June. Records of the oral argument can be accessed via  the Supreme Court's website:

 The Hearing focused on four questions, the first three presented by the Trump administration, and the fourth presented by the state of Hawaii:

  1. Whether courts can review a challenge to the travel ban executive order at all;
  2. Whether the executive order falls within the president's authority over immigration;
  3. Whether the Hawaii district court's order applies too broadly;
  4. Whether the executive order violates the Constitution's establishment clause, which (among other things) bars the government from favouring one religion over another.

The government's position remained that the travel ban fell squarely within the powers granted to the executive branch by Congress, which allows presidents to prevent the entry of any aliens they determine would be detrimental to the interests of the United States. The state of Hawaii argued that the travel ban oversteps Congress’ intention by creating what amounts to a nationality-based ban. 

With respect to whether the travel ban had violated the establishment clause of the U.S. Constitution by targeting predominantly Muslim countries, the arguments hinged primarily on how much consideration, if any, should be placed on the President's public comments regarding Muslims. The challenging party relied on  President Trump's comments made during his presidential campaign. They argued that such views have rekindled since the start of the current administration. In contrast, the government stated that President Trump’s comments during the campaign should not be considered because he was a private citizen at the time he made them and that national security information has since justified the need for the travel restrictions. In response to a question posed by Justice Alito, the challenging attorney affirmed that a “reasonable observer” could conclude that the travel ban is a “Muslim ban.”

The third rendition of the travel ban continues to be in affect pending outcome of the litigation. The full text and impact of the proclamation on nationals of affected countries can be read here.