Posted by Ryan Suto on December 06, 2017 in Blog

300px-Supreme_Court_of_the_United_States_-_Roberts_Court_2017-1.jpgThe Supreme Court released two identical, 1-page orders this week regarding Muslim Ban litigation. The effect of the orders is to allow the Presidential Proclamation, widely referred to as Muslim Ban 3, to temporarily take full effect, overruling a district court injunction out of Hawai’i and a restraining order from Maryland limiting the scope of the Ban. The orders came as identical 7-2 decisions with no explanations or reasoning.

As a reminder, Muslim Ban 3 includes particular nationals of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen who do not have a valid visa, have not obtained a Section 3(c) waiver, and were outside the US on either September 24 or October 18, depending on their country of origin.

Note that this decision does not impact the Refugee Ban, which has been in effect under the President’s October 24 Executive Order which bans for 90 days refugee admissions to the US from eleven unnamed countries, reported to be Egypt, Iran, Iraq, Libya, Mali, North Korea, Somalia, South Sudan, Sudan, Syria and Yemen.

For now, Muslim Ban 3 will remain in effect until 1) decisions are rendered in pending cases before Fourth and Ninth Circuit Courts of Appeals regarding the Proclamation, 2) the Supreme Court decides to not hear the case, or 3) if the Court hears the case, the Court announces a decision. Any of these judicial decisions could limit, block, or allow the Muslim Ban in full. Arguments for Hawaii v. Trump before the 9th Circuit are scheduled for today, December 6; arguments for IRAP v. Trump before the 4th Circuit are scheduled for Friday, December 8.

Procedurally, these orders on Muslim Ban 3 are similar to one issued on Muslim Ban 2 back in June where the Court limited that Ban regarding bona fide connections and close familial relationships in a per curium decision. However, Monday’s rulings do not continue those previous limitations, allowing the President’s policy to take full force. Without a longer opinion, it is difficult to determine from this ruling how the Court may rule on the merits of the Muslim Ban.

The Court’s deference to the Government’s claims, including two mootness rulings regarding Muslim Ban 2 which overruled lower-court rulings limiting that Ban, in now allowing the full Ban to take effect is concerning. While the Court has yet to rule fully on the Constitutionality of the Muslim Ban or Refugee Ban, it has allowed the lives of millions of citizens, visa holders, tourists, students, and refugees to be impacted by unilateral policies of a man who explicitly called for a ban on Muslims entering the US, has recently retweeted hateful anti-Muslim videos, and has, as the Fourth Circuit found, “suggested that he would attempt to circumvent scrutiny of the Muslim ban by formulating it in terms of nationality, rather than religion.”