4th Circuit rules against latest travel ban

16 Feb 18


The United States Court of Appeals for the 4th Circuit issued a 9-4 ruling Thursday that upholds a Maryland district court decision, stating that the most recent version of President Donald Trump’s travel ban likely violates the Constitution’s Establishment Clause by discriminating against Muslims. The 4th Circuit’s ruling joins a Dec. 22 9th Circuit ruling upholding the decision of a Hawaii district court that determined that the ban was likely an unlawful exercise of presidential authority under the Immigration and Nationality Act.

The ruling will have little immediate impact, because the Supreme Court ruled in December to let the ban remain in place pending Supreme Court review. The Supreme Court has agreed to hear the case this term. Oral arguments are scheduled for April and a decision is expected no later than June.

At the time the Supreme Court allowed the ban to remain in place, two district court rulings were in conflict even though they both reached the conclusion that the ban should be put on hold. While the Hawaii court ruling stated that the ban exceeded the scope of the statutory authority, the Maryland district court stated that the ban was within the president’s statutory authority, a point that may have undermined arguments against the ban when it was considered by the Supreme Court. While the 4th Circuit’s decision was based primarily on Constitutional grounds, however, the court also agreed with the 9th Circuit that the ban exceeds the president’s statutory authority. This could improve the chances that the Supreme Court will rule against the ban.

The latest version of Trump’s travel ban was issued in September after two earlier versions were met with resistance in the courts. The current ban applies to nationals of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen. Exact restrictions are specific to each country. The ban has not dramatically expanded the number of employees subject to travel restrictions for most companies. BAL released an FAQ on the restrictions when they were released in September. The analysis is available here.

BAL Analysis: The Supreme Court will have the opportunity to settle the legal questions that have surrounded the travel ban and its earlier iterations for almost a year. While the Court had already agreed to determine the legality of the ban, the 4th Circuit’s ruling did provide legal reasoning that could play a role in influencing the justices’ final decision.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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