Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

Question:  I have friends in the countries which Trump wants to still do his travel ban. I know it was denied. Is it still ongoing or could it still happen?

Answer: Yes, the Fourth Circuit Court of Appeal had granted the injunction and made it nationwide. However, the government has now submitted the request for the U.S. Supreme Court to hear the case. This is known as a Writ of Certiorari. First,  The government has filed a petition for a writ of certiorari to the Supreme Court appealing the Fourth Circuit’s injunction against Section 2(c) of Executive Order 13780, which suspended the entry of nationals of six Muslim-majority countries to the United States for 90 days. The Trump administration argues that the Constitution gives the president “broad authority to prevent aliens abroad from entering this country when he deems it in the nation’s interest.”

However, on the decision from the Fourth Circuit, they ruled essentially that the rhetoric which Trump used during the campaign was that he wanted to ban Muslims. Because he said this multiple times, he could not simply write an executive order which seemed somewhat valid on its face without seeing the intent of why he made it in the first place.

Thus, assuming the U.S. Supreme Court takes this (which is not guaranteed), then one of the major issues is whether a Court can look at past conduct, statements, Tweets, etc. in order to determine the ‘intent’ of the executive order outside of the executive order itself.

Question: What about Trump’s new set of Tweets where he just stated that because of the attacks in London that he does not even want the watered down executive order, but rather, that he wants the Supreme Court of the U.S. to rule that the first Executive Order should be ruled upon?

Answer: In actuality, Trump has basically proven the opposing sides arguments. Their arguments are essentially that he really does not mean what is ‘written’ on the ‘watered down’ executive order as Trump puts it. In fact, he only ‘watered it down’ in order for it to hopefully pass. Trump tweeted it is time to NOT be politically correct.  Thus, the whole argument that his executive order is really just a Muslim Ban has been given a significant amount of ammunition by his last round of Tweets. It is almost certain that the opposition to the Writ of Certiorari will put forth arguments showing that his latest Tweet Storm clearly shows that Trump’s true intention was to ban Muslims from coming to the U.S.

Question: About how long will it take for the U.S. Supreme Court to decide on this matter?

Answer: In actuality, first the U.S. Supreme Court has to agree to take the case. Judicially speaking, the U.S. Supreme Court is the highest Court. If they decide to not take the case, then that is an affirmation that the Fourth Circuit Court of Appeals was correct. However, the reality, is that this is a case of new impression and has constitutional implications on the executive branch of the U.S. Thus, it is likely that the U.S. Supreme Court will take the case. If they do take the case, it will most likely be on an expedited schedule and will be heard probably in the term of the U.S. Supreme Court next year and decided shortly after that. Theoretically, it could be heard sooner, but only if they deem it to be of such importance and such an emergency that it would mandate such an expedited hearing.

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