Disappointing Supreme Court Order Brings Travel Ban Back in Full Effect

Are you starting to suffer from Travel Ban whiplash?  You are not alone.  In a disappointing order earlier this week, the Supreme Court (SCOTUS) granted the government’s request to remove the stays that had been put in place by two lower courts in November.  Now the latest version of the Travel Ban is back in full effect. What does it all mean and what does the future hold?  We’re here to break it down.  But first, let’s examine a brief history of the orders and events that brought us to this week’s SCOTUS decision.

Just how did we get here?

On January 27, 2017, the original Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” banned individuals from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.  Subsequently dubbed “Travel Ban 1.0”, it quickly faced massive protests and legal challenges.  A federal judge in Washington state stopped this ban just a week after implementation.  The government ultimately lost on appeal and opted not to take the matter to the Supreme Court.  Rather, it focused efforts on improving the next version, Travel Ban 2.0.

In March, the administration tried again with a second attempt.  This Executive Order was substantially similar to the first,  but removed Iraq from the list of affected countries and added certain exemptions. Permanent residents were specifically exempted from the order’s reach and those who already had valid visas could continue to use them.  A waiver was made available for those with compelling reasons.  Yet, the Ninth and Fourth Circuits still found the revised order to be little more than a pretext for discriminating against Muslims. Injunctions were issued, thus placing the order’s implementation on hold until it expired in September.

New and Improved?  The Latest Proclamation

On September 24th, a new travel ban was issued in the form of a proclamation (Travel Ban 3.0, if you will).  More likely to survive legal attack, this proclamation claims to be based on objective criteria regarding potential threats to the U.S. as a result of the worldwide review conducted by the secretary of the U.S. Department of Homeland Security.   Further explanation of the proclamation's details can be found here.

This version imposes a variety of travel restrictions on nationals of eight countries: Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia and has no set time limit on when it may be lifted.

What does the SCOTUS order do?

On December 4th, the Supreme Court issued an unsigned order allowing the travel ban (proclamation version) to take effect by staying the two blocks that were put in place by lower courts in Maryland and Hawaii.  This order did not get to the merits of the case and did not include any rationale for the court's decision.  Justices Sotomayor and Ginsberg did not support the order, but did not offer dissent or further insight.  Legal watchers worry that this order could be a signal that the justices are more likely to allow the proclamation to stand.

The order directs that the ban remain in effect regardless of what the appeals courts rule until the justices make a decision whether to take up the issue on the merits.  It is expected that the Supreme Court will take up the matter for full consideration.  Until then, the appellate courts are directed to rule promptly, with arguments already taking place yesterday and Friday.

Previously, the lower courts had limited the scope of the ban to individuals without certain family connections or with formal relationships with U.S.-based entities, such as resettlement agencies, businesses, and universities. The SCOTUS order now allows the ban to fully take effect, without consideration of these ties.

The suspension of entry in the proclamation does not apply to individuals who are inside the United States or who had a valid visa on the effective date of the proclamation.  Importantly, it does not restrict the travel of permanent residents (green card holders). The Department of State confirmed that full implementation of the proclamation was expected Friday morning.

What Countries are Impacted and How?

Chad- Entry of immigrants and of nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas is suspended.

Iran- Entry of immigrants and of nonimmigrants is suspended, except that entry by nationals of Iran under valid student (F and M) and exchange visitor (J) visas is not suspended.  Such individuals will be subject to enhanced screening and vetting requirements.

Libya- Entry of immigrants and of nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas is suspended.

North Korea-  Entry of all immigrants and nonimmigrants is suspended.

Syria- Entry of all immigrants and nonimmigrants is suspended.

Somalia- Entry as immigrants is suspended and nonimmigrants traveling to the United States will be subject to enhanced screening and vetting requirements.

Venezuela-  Venezuelan government officials and their immediate family members as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas is suspended. 

Yemen- Entry of immigrants and of nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas is suspended.