Constitution Daily

Smart conversation from the National Constitution Center

Trump Administration back at Supreme Court in immigration fight

November 21, 2017 by Lyle Denniston


The Trump Administration returned to the Supreme Court on Monday night in the latest round in the long-running court fight over barring the entry into the U.S. of foreign nationals from nations with Muslim population majorities.

Although a federal appeals court had allowed the Administration to begin enforcing part of the third version of immigration restrictions, government lawyers urged the Justices to allow enforcement of the policy in its entirety until the Supreme Court has an opportunity to rule on the legality of the latest limits.

At this point, though, the Administration is seeking only a delay of a federal judge’s nationwide order against enforcing key parts of the September 24 version of the travel restrictions.  The U.S. Court of Appeals for the Ninth Circuit ruled a week ago that the judge had gone too far, and allowed the government to impose the restrictions on foreign nationals from six countries in general, but not on those individuals who already have some established tie to a person or an organization in the U.S.

In the new filing seeking authority to enforce the full September 24 orders for those six nations, the Administration said that the Ninth Circuit Court’s action was not sufficient to avoid the “irreparable harm” to the President’s authority to impose a ban on entry of foreign nationals deemed to be a potential threat to national security.

Although the Supreme Court had given the government similar, partial permission to enforce the now-abandoned second version of the immigration limitations, the new filing said that earlier round in the legal controversy had only involved a temporary policy that was adopted to give the government more time to study ways to limit threats from potential immigrants.

The third version, the document contended, is very different: it was written after an extensive, weeks-long review by several government agencies of what kinds of limitations were necessary in order to protect national security over a longer period of time.   The new restrictions on entry are permanent, not temporary, it noted.

The court battle over the third version, the federal lawyers told the Justices, involves serious constitutional questions about the authority of the courts to interfere with presidential authority to safeguard the nation from potential threats by foreigners seeking to enter the U.S. to live or to work or study temporarily.

A federal judge in Hawaii issued a sweeping, nationwide order against enforcement of the third version, in its entirety.  The Ninth Circuit Court, however, modified that to allow enforcement but not against those foreign nationals with close family, business or educational ties to the U.S.

Earlier, the Supreme Court had agreed to rule, during its current term, on the legality of President Trump’s second order to limit entry of foreign nationals from Mideast nations.  However, the Justices did not reach a decision on that version because it was replaced by the third policy approach adopted in September.

In its new plea for unrestricted authority to enforce the September order, the Administration predicted that the Justices will grant review, and will ultimately rule in the government’s favor, even if federal appeals courts rule against the Administration.

The new filing spent little of its content in arguing against the Ninth Circuit Court’s partial enforcement grant, devoting the bulk of the document to strenuous criticism of the order by the judge in Honolulu – U.S. District Judge Derrick K. Watson.

Judge Watson’s reasoning, the new filing contended, “raises grave constitutional questions because it would mean that…the President cannot suspend entry of aliens from a specified country even if he is aware of a particular threat from an unidentified national of that country, or the United States is on the brink of war with it,” and that restraint on the President would exist, it added, even if he were using authority specifically granted by Congress.

The September order applies various country-by-country limitations on entry of foreign nationals from eight nations, but the challengers only aimed their claims of illegality at its application to six countries with Muslim population concentrations: Chad, Iran, Libya, Somalia, Syria and Yemen.

The September policy also applies in general to North Korea and to specified individuals from Venezuela, but those were not challenged in the lawsuit before Judge Watson in Honolulu.  Neither has a significant Muslim population.

The new presidential immigration restrictions have also been partially blocked by a federal judge in Maryland, and the Administration has a request pending for delay of that order by the U.S. Court of Appeals for the Fourth Circuit.

Both the Fourth Circuit and the Ninth Circuit are scheduled to hold hearings next month on the legality of the third version of the restrictions.  The Administration’s filing on Monday night sought full enforcement power until those appeals courts have ruled and, potentially, the dispute is then appealed to the Supreme Court.

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on


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