Supreme Court Cancels Hearing on Previous Trump Travel Ban

WASHINGTON — The Supreme Court on Monday abruptly canceled oral arguments on President Trump’s travel ban, signaling the beginning of the end for a politically charged legal case that could have produced a blockbuster ruling on the clash between presidential power and claims of religious discrimination.

A new, broader ban on travel prompted the unusual move by the justices, leaving Mr. Trump to face scrutiny on a policy that in some ways goes even further — indefinitely banning most travel to the United States from seven countries and imposing restrictions on two others.

But the president’s third attempt at controlling the border may finally stand up to the expected wave of new legal challenges. The new ban includes two countries that are not majority Muslim, which may insulate him from charges that his actions are based on religious discrimination.

And the new ban was developed after a vigorous security review that administration officials said provided a legally unassailable rationale for the travel restrictions. The court was set to hear the challenge to Mr. Trump’s travel ban in two weeks. But after the president’s announcement over the weekend, the justices now appear likely to declare the case moot.

That would allow Mr. Trump to avoid a definitive ruling on whether he had violated the Constitution’s protection of religious freedom and exceeded his statutory authority to control the country’s borders, as civil rights lawyers argued. With lower courts having ruled against him, Mr. Trump was pinning his hopes for political vindication on an ideologically divided Supreme Court.

Critics say Travel Ban 3.0 is still little more than a dressed-up Muslim ban. And despite a less chaotic rollout, questions remain about how the travel ban will be put in place, who will be affected, how the countries were picked and whether it will work to prevent terrorist attacks.

Here are answers to some of those questions:
Why did Trump ban travel from these countries?

The Department of Homeland Security said the countries covered under the presidential proclamation were chosen because they could not properly establish the identity of people seeking to travel from those countries to the United States. Officials said the countries on the list did not share information about whether potential travelers have a criminal history or connections to terrorism. And some of the countries are known to be potential terrorist safe havens.

Administration officials said countries on the banned-travel list failed to meet what they called “objective criteria.” They will be subject to the travel ban until they can demonstrate their ability to deliver the information requested by the United States, officials said.
Will this prevent a terrorist attack?

While counterterrorism experts say improvements to the government’s vetting capabilities are necessary, they say the new restrictions may be far too broad because they focus on countries and not individuals.

An internal report written by intelligence analysts at the Department of Homeland Security in February found that “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity.”

Moreover, the Cato Institute found that since 1975, no Americans have been killed on American soil by foreign-born terrorists who come from any of the countries on the new executive order: Iran, Libya, Syria, Yemen, Somalia, Chad, North Korea, Iraq and Venezuela. The New America Foundation found that since the Sept. 11 attacks, 95 Americans had been killed by terrorists inside the United States. Each of the terrorists was a citizen or legal resident of the United States who would not be affected by the new travel restrictions.

Since the Sept. 11 attacks, the United States has made a number of changes to its vetting system for foreign visitors, immigrants and refugees.

The government has created a number of terrorist watch lists, required visitors to provide biometric information including fingerprints and facial scans, hired new consular officers and Immigration and Customs Enforcement agents to conduct visa security background checks and improved both interagency and country-to-country intelligence sharing.

Some counterterrorism experts say the new travel restrictions could make the United States less safe.

“My concern over the travel restrictions on countries like Yemen, Chad and Somalia is that it may discourage those countries from cooperating on vital counterterrorism efforts in their countries, and that will hurt our efforts to go after Al Shabab, Al Qaeda and ISIS,” said John D. Cohen, a professor at Rutgers University and a senior Homeland Security Department official during the Obama administration.
Isn’t this just a Muslim ban?

Like his first travel bans, the president’s latest restriction mostly targets predominantly Muslim countries. But officials note that two non-Muslim countries — North Korea and Venezuela — are on the list this time. They say that should be proof that the latest ban was not designed to target one religion.

Critics are not convinced. They continue to point to Mr. Trump’s history of calling for a ban on Muslim entry into the United States. And they insist that the addition of two non-Muslim countries does little to alter the original intent of the restrictions: to keep Muslims from certain countries out of the United States.

“President Trump’s original sin of targeting Muslims cannot be cured by throwing other countries onto his enemies list,” Anthony D. Romero, the executive director of the American Civil Liberties Union, said.
How involved was the White House in drafting the new travel ban?

When it comes to immigration issues, very little happens in the Trump administration without the direct input of Stephen Miller, the president’s senior policy adviser, and Jeff Sessions, the attorney general. But administration officials said the process of selecting countries for travel restrictions involved scores of career bureaucrats at the Department of Homeland Security, the State Department and the intelligence agencies.

Officials said information collected by the agencies helped generate a recommendation from the secretary of homeland security to the president. On Friday, Mr. Trump met at his Bedminster, N.J., golf club with officials from the agencies, legal advisers and Mr. Sessions to make a final decision.
So what will happen now in the courts?

The Supreme Court asked lawyers in the case involving the previous ban to submit briefs by Oct. 5 addressing “whether, or to what extent, the proclamation” may render the case moot. The court also asked for briefings on a question not addressed in the proclamation, concerning the earlier ban’s suspension of the nation’s refugee program. That suspension is scheduled to expire next month. On that question, too, the court asked the parties to explain whether the issue would soon be moot.

By canceling the arguments for now, the court indicated that it may never decide the case. “The cases are removed from the oral argument calendar, pending further order of the court,” the court said.

If the court does eventually dismiss the case as moot, a further legal question will remain. The Trump administration will ask the court to vacate the appeals court decisions striking down the earlier ban, while the challengers will ask that the decisions remain on the books.

Several critics have said they intend to challenge the new ban in court as well. But that would most likely require a new lawsuit at the federal district court level, followed by hearings in front of appellate courts. It could take a long time for new litigation to reach the Supreme Court again.

But legal experts say that critics of the president’s policies may have less success waging a legal battle against the latest travel ban.

In the first case, administration officials struggled to explain to judges the basis for the selection of the majority-Muslim countries on the list. That led judges to rely on Mr. Trump’s campaign statements and Twitter posts, many of which suggested religion as a motivation.

The current travel ban was put in place after a worldwide security review, and officials can point to a rigorous process conducted by bureaucrats from several agencies. That is the kind of executive branch action to regulate immigration and the country’s borders that is usually given plenty of deference by judges.
When will this take effect? And does it affect students?

The new travel ban takes effect Oct. 18, though citizens of countries included in the earlier orders will remain banned from entry until the new one takes over. Unlike the chaotic rollout of the president’s first executive order, the latest travel restrictions have clear exceptions for people who already have permission to enter the United States, so there should be few instances of people being detained at airports or consulates.

As for students, it depends. Citizens of some of the affected countries are completely banned from coming to the United States. Those include Syria and North Korea. Students from the other countries may still travel to the United States to study, assuming they can meet the normal requirements for a student visa and pass security screenings.