Judging the Travel Ban-and Judges

President Donald Trump challenges police officers and a Deferred Action for Childhood Arrivals program during a rally outside the office of California Democratic Sen. Dianne Feinstein in Los Angeles Wednesday Jan. 3 2018

In a brief urging the Supreme Court to hear the case, Solicitor General Noel Francisco wrote that the eight countries named in the current ban "do not share adequate information with the United States to assess the risks their nationals pose, or they present other heightened risk factors".

"The president has issued a proclamation, without precedent in this nation's history, that purports to ban over 150 million aliens from this country based on nationality alone", said Hawaii's brief to the court, written by Washington lawyer Neal Katyal.

The travel ban targets people from Chad, Iran, Libya, Somalia, Syria and Yemen who want to enter the U.S. It also places limits on travelers from Venezuela and North Korea. The administration has taken a beating in the many challenges to its immigration initiatives, including the three iterations of the "travel ban" applicable to noncitizens from predominantly Muslim countries.

Trump's first travel ban was issued nearly a year ago, nearly immediately after he took office, and was aimed at seven countries. The 4th Circuit appeals court, based in Virginia, is due to rule soon on the administration's appeal of that decision.

Moreover, a stay would not address the institutional injury suffered by the United States of being embroiled in protracted litigation over an agency decision that falls squarely within DHS's broad discretion over federal immigration policy and that is not even judicially reviewable.

But the Supreme Court dismissed those appeals in October after the second ban expired.




In a court filing obtained by The Hill, the Justice Department followed through on a promise earlier this week to ask for the Supreme Court to make a "rare" move to bypass the 9th Circuit Court and rule on the legality of the decision before the court's term ends in June.

That's our read of the Supreme Court's announcement Friday granting the Administration's petition for certiorari in Trump v. Hawaii. That constitutional question was added as the Justices also agreed to review whether the Trump order issued in September is illegal under federal immigration laws or federal procedural rules.

The administration has maintained the travel bans are wholly in the national security interest and consistent with Trump's presidential powers.

The latest ban was introduced on September 24 after what Francisco called an "extensive, worldwide review" to determine which foreign governments provide information required by the United States to vet those seeking entry. The policy's opponents say it's illegally discriminatory against religion.

The Constitution gives Congress the power to set the law on immigration, and the president is given the duty to enforce it.

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