Andrew Chung, Mica Rosenberg
FILE PHOTO – A family exits after clearing immigration and customs at Dulles International Airport in Dulles, Virginia, U.S. September 24, 2017. REUTERS/James Lawler Duggan
NEW YORK (Reuters) – The Supreme Court signalled on Monday it may dismiss a challenge to President Donald Trump’s controversial travel ban after the White House announced tailored restrictions on eight countries that legal experts said stand a better chance at holding up in court.
The high court cancelled oral arguments scheduled for Oct. 10 to decide whether or not a March 6 executive order that temporarily blocked travel from six Muslim-majority countries was discriminatory.
That ban expired on Sunday. The president replaced it with a proclamation that indefinitely restricts travel from Iran, Libya, Syria, Yemen, Somalia, Chad and North Korea. Certain government officials from Venezuela will also be barred. The new ban, Trump’s third, could affect tens of thousands of potential immigrants and visitors.
Trump has been trying for most of the year to create a ban that passes court muster. The Sunday proclamation, which he said is needed to screen out terrorist or public safety threats, could be less vulnerable to legal attack, scholars and other experts said, because it is the result of a months-long analysis of foreign vetting procedures by U.S. officials.
It also might be less easily tied to Trump’s campaign-trail statements some courts viewed as biased against Muslims.
“The greater the sense that the policy reflects a considered, expert judgement, the less the temptation (by courts) to second-guess the executive,” said Saikrishna Prakash, a professor at the University of Virginia School of Law, in an email. “It looks less like a matter of prejudice or a desire to fulfil a campaign promise.”
In its brief order, the high court asked the Trump administration and the ban’s challengers, including states and refugee advocacy organizations, to file briefs on whether the case should be dismissed.
Trump’s March 6 ban sparked international outrage and was quickly blocked by federal courts as unconstitutional discrimination or a violation of immigration law.
In June, the Supreme Court allowed a limited version of the ban to go ahead while the justices prepared to hear arguments over its legality on Oct. 10, a date they have now scrubbed.
In 2016, more than 72,000 nonimmigrant and immigrant visas were issued to the countries covered by the new ban, excluding Venezuela, with nearly half of those going to Iran. Only nine North Koreans immigrated to the United States in 2016 and 100 were granted nonimmigrant visas.
The new ban is set to go into effect on Oct. 18, but it already applies to five of the six countries covered by the March 6 ban, according to a U.S. State Department cable issued on Sunday and obtained by Reuters.
Sudan was dropped from the list of banned countries after the Sudanese government provided information required under the new criteria set out by the Trump administration earlier this year, a White House official said on Monday.
The government has said the president has broad authority in immigration and national security matters, but challengers to the March ban had argued that it ran afoul of the U.S. Constitution’s bar on favouring one religion over another.
They cited statements Trump made during his 2016 campaign for president, including his call for a “total and complete shutdown of Muslims entering the United States.”
Within hours of Sunday’s proclamation, representatives for the Hawaii, New York and California attorneys general said their offices were reviewing the new restrictions. Advocacy organizations denounced it as more of the same.
If the court does dismiss the case, there remains the separate issue of whether the justices will throw out the sweeping lower court rulings that invalidated the ban.
The government would want to erase precedents that constrain its authority while the challengers would want to keep them in place for the same reasons.
STILL A ‘MUSLIM BAN’?
“This is still a Muslim ban. They simply added three additional countries,” said Becca Heller, director of the International Refugee Assistance Project, which previously sued to block Trump’s travel ban executive orders.
“Of those countries, Chad is majority Muslim, travel from North Korea is already basically frozen and the restrictions on Venezuela only affect government officials on certain visas,” Heller said.
Sudan, which was in the March order, is no longer included.
The worldwide review examined each country’s ability to issue reliable electronic passports and share security risk data with the United States. Overall, 47 countries had problems, and 40 made improvements, including 11 that agreed to share information on known or suspected terrorists, Trump’s proclamation said.
The review “at least arguably attenuates the link between the president’s alleged bias and the policy,” said Margo Schlanger, a University of Michigan Law School professor.
However, challengers potentially could argue that the expanded ban violates the federal Immigration and Nationality Act, which forbids the government from discriminating based on an individual’s nationality when issuing immigrant visas. “Congress decided that it didn’t want an immigration system that played favourites among countries,” Schlanger said.