The Trump administration has asked the Supreme Court to reinstate the president’s revised executive order to ban nationals of six Muslim-majority countries from entering the U.S. for a 90-day period. The petition, filed late Thursday, came after the U.S. Court of Appeals for the 4th Circuit ruled against reinstating the order. In a May 25 decision, the appeals court upheld a district court’s ruling to halt the implementation of the ban, saying that when taken in context of remarks from the president and his aides, the executive order “drips with religious intolerance” for Muslims.

In asking the Supreme Court to review the 4th Circuit’s ruling, however, Acting Solicitor General Jeffrey B. Wall said the appeals court engaged in the kind of “judicial psychoanalysis” that is foreclosed by case law when it speculated about the motivation behind Trump’s statements, many of which were made before he became president. “This Court has never invalidated religion-neutral government action based on speculation about officials’ subjective motivations drawn from campaign-trail statements by a political candidate,” the government’s petition said.

The March 6 order would prevent nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen from traveling to the U.S. for a 90-day period except in cases where an exemption or waiver applied. It was signed after a broader executive order, issued in late January, also stalled in federal court. The revised version included exemptions for green card holders, visa holders and dual nationals. It also did not cover Iraqi nationals, who were included in the initial executive order.

Federal judges in Maryland and Hawaii ruled in March to stop the revised order from taking effect. The administration appealed both rulings. The U.S. Court of Appeals for the 9th Circuit heard arguments in the appeal of the Hawaii judge’s ruling, but has yet to issue a ruling.

BAL Analysis: For the time being, foreign nationals covered by the executive order may continue traveling to and from the U.S. as they could before the order was signed. The Supreme Court has been asked to review the 4th Circuit’s ruling, however, and could reinstate the order if it takes the case. Employers with personnel who would be subject to travel restrictions should continue to advise their employees to exercise caution when planning travel because the litigation is ongoing. BAL is carefully monitoring the situation and will continue to provide updates on important developments.

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