Is the Trump Travel Ban Still Moot? Why the Broader Issue of Executive Power is at Stake.

On December 8, 2015, then candidate Donald Trump called for what colloquially became known to some as a “Muslim ban.” Fast forward almost a full year later to January 27, 2017, when President Trump issued an executive order titled “Protecting the Nation from Foreign Terrorist Entry into the United States.” The order placed a temporary ban on immigration from seven countries that had been deemed to be terror prone by the Obama Administration. Almost immediately, an injunction was ordered barring the enforcement of the order.

In response, President Trump issued a “watered down” travel ban” on March 6, 2017. The new travel ban was less restrictive than the first ban, allowing immigration from Iraq, and containing an exemption for green card holders and people with permanent residency who were entering the U.S. from any of the other six countries. Despite the revision, the order was challenged in multiple lower courts, and eventually appeals were heard in both the Fourth and Ninth Circuits. Both courts ruled against allowing the “watered down” travel ban to go into effect.

The Supreme Court:

On June 26, 2017, the Supreme Court agreed to hear the appeals of those cases during its fall term. Most notably, they lifted the stays that the lower courts had placed on the travel ban, thereby allowing it to go into effect “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.” Though a minor legal debate over the scope of the phrase “bona fide relationship” ensued, the decision to lift the stay until the Court heard the case at least signaled to some that the Court was likely to side with President Trump’s assertion of executive power.

 The Split

Though both the Fourth Circuit Court of Appeals and the Ninth Circuit Court of Appeals ruled against President Trump’s travel ban, each court differed in its reasoning. The Fourth Circuit’s decision was based on the premise that President Trump’s rhetoric during the campaign was evidence of his “anti-Muslim sentiment.” The decision went on to say that such discrimination in the form of an executive order violated the Establishment Clause of the First Amendment.

The Ninth Circuit’s decision to stay the ban was based on statutory grounds. They held that President Trump’s Executive Order violated the Immigration and Nationality Act (INA). The INA requires that a President provide reasoning for his or her decision to restrict immigration from certain countries, and the Ninth Circuit held that President Trump failed to provide such support for his order.

Looking Forward and why the Circuit Split Matters:

Recently, the Supreme Court removed the appeals of both of the above cases from its oral arguments calendar for the fall over the question of whether the issue was still moot. In light of both of the lower court decisions, President Trump issued a third travel ban, which added more countries to the list that bans entry and provided a much stronger rationale for the ban after citing an inter-agency review. Though there will likely still be grounds to challenge the new order, it is entirely possible that the Court will not find those new challenges persuasive and thus leave its decision to lift the stay in place.

If this were to happen, it would set up an interesting legal question over what to do with the lower court decisions. The Trump Administration will likely want the lower court decisions vacated because they restrict his authority. In particular, since the Fourth Circuit’s decision was based on constitutional grounds, it is the decision that has a far greater impact on the scope of executive power in the United States. Therefore, what the justices decide to do with the mootness issue and consequently the lower court decisions will play an important role in understanding how the justices view the scope of Trump’s executive power.