Supreme Court hears challenge to Trump travel ban

The Supreme Court heard arguments Wednesday on the latest version of President Donald Trump’s travel ban, peppering attorneys on both sides with questions about the legality of the restrictions under the Immigration and Nationality Act and U.S. Constitution.

The travel ban has been enforced since December, following the Court’s decision to allow the administration to enforce the ban while challenges played out in the courts. The ban applies to nationals of Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen, with exact restrictions specific to each country. Chad was removed from the list of countries earlier this month.

Neal Katyal, an attorney for the parties challenging the order, said that in implementing the travel ban Trump has taken power under the Immigration and Nationality Act that “no president in 100 years has exercised,” countermanding Congress’ policy goals. He added that to accept the government’s arguments is to accept that “the president can take an iron wrecking ball to the statute and pick and choose things that he doesn’t want for purposes of our immigration code.”

Solicitor General Noel Francisco, by contrast, framed the travel ban as a narrow set of restrictions that were implemented after an “extensive worldwide process.” He noted that the order does not apply to “almost all the world, including almost all of the Muslim-majority world,” but rather to “a tiny number of countries.”

The justices seemed to split on traditional liberal/conservative lines. While Justice Kennedy asked hard questions on both sides of the case, he may be leaning toward supporting the ban based on the national security concerns raised by the government. The Court is expected to rule on the case, Trump v. Hawaii, in June.

BAL Analysis: The Court’s December order allowing the travel ban to remain in place pending appeal indicates that the Court may be inclined to support this version of the ban, and the justices’ questions on Wednesday suggest a narrow majority of the Court could rule in support of the ban.

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.

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

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