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Trump's travel ban just dodged a Supreme Court hearing

by Carter Sherman
Sep 25 2017, 11:35am

Don’t expect an end to the fight over President Donald Trump’s travel ban anytime soon: On Monday, the Supreme Court took oral arguments over the case off its schedule.

Following Trump’s issuing yet another version of his travel ban on Sunday, the Supreme Court has asked lawyers on both sides of the issue to file briefs debating whether the new ban renders moot the entire case, which was based on religious discrimination. If the justices find that it is indeed moot — in other words, that the constitutional problem up for debate no longer exists — then they’ll likely dismiss the current travel ban case entirely and wait for a new case to work its way back up through the courts.

“The courts historically have been very deferential to the president on issues of immigration,” said Adam Winkler, a professor at the University of Los Angeles School of Law. While previous versions of Trump’s travel ban, ostensibly imposed for national security reasons, were rushed and broad, he said, “Now that the president has issued a nuanced and detailed travel ban, the courts might be expected to return to their traditional policy of deference.”

Read: Grandparents are now “bona fide” relatives under Trump’s travel ban

The new ban bars some individuals from North Korea, Chad, and Venezuela from entering the United States, though restrictions on Sudanese nationals have been lifted. Some refugees and most people from Iran, Libya, Syria, Yemen, and Somalia are still not allowed to come to the country.

The new ban bars some individuals from North Korea, Chad, and Venezuela from entering the United States, though restrictions on Sudanese nationals have been lifted. Some refugees and most people from the majority-Muslim countries of Iran, Libya, Syria, Yemen, and Somalia are still not allowed to come to the country.

Because North Korea and Venezuela aren’t majority-Muslim nations, adding them to the banned list will likely make it harder for Trump’s opponents to continue to argue that religious discrimination shaped the ban and that it should thus be struck down. However, Trump may torpedo his own ban if he makes any anti-Muslim comments, or if the Supreme Court decides that his past comments about wanting a “total and complete shutdown of Muslims entering the United States” still apply to this case.

The Supreme Court also wants lawyers to detail whether the fact that Trump’s second travel ban was technically set to end on Sunday would also potentially render the case irrelevant. The justice may add the case back onto their oral argument schedule after they consider lawyers’ briefs.

“The Supreme Court probably does not want to enter into the immigration debate,” Winkler said. “So the court’s probably looking for any excuse they can to get out of the original travel ban case.”