The Supreme Court on Tuesday ended its review of President Trump’s power to curb entry into the U.S. of foreign nationals and refugees, dismissing the remaining test case on its docket raising that question. At least two new cases, however, are making their way to the Justices, renewing that basic controversy, perhaps in the current term.
The new order, issued over one dissent, wiped out a ruling by the U.S. Court of Appeals for the Ninth Circuit that had declared that the President probably violated federal immigration laws when he issued in March the second version of his immigration restrictions. That version has since been replaced by a third executive order, and already that most recent order has been found legally flawed by a federal trial judge in Hawaii.
That new ruling, by U.S. District Judge Derrick K. Watson of Honolulu, will be challenged by the Administration in an appeal to the Ninth Circuit Court. On Tuesday morning, Administration lawyers formally notified Judge Watson of that appeal. Although the Supreme Court has now technically erased the Circuit Court ruling on which the Honolulu judge had relied in his new decision against the President, that does not necessarily undercut his judgment that the latest executive order is defective.
The Trump team had started a separate appeal to another federal appeals court, for the Fourth Circuit, to challenge a new decision by a federal judge in Maryland that the third version of the Trump order is likely to be struck down as an unconstitutional ban on Muslims because of their religion, and as an illegal action under immigration law.
The challengers who contested the latest Trump order in the Maryland court of District Judge Theodore D. Chuang of Greenbelt, MD, have already filed their own appeal to the Fourth Circuit, because the judge gave them less than they had sought in that case.
The Justices had been planning to rule on the legality of the now-expired second Trump order, but both of the two previous appeals on that point have now been dismissed by the Justices because the immigration restrictions at issue in each of those cases were only temporary, and each has now expired.
The Justices dismissed the earlier appeal in the Maryland case on October 10, and followed that with Tuesday’s dismissal of the earlier appeal in the Hawaii case. Justice Sonia Sotomayor was the only one to note a dissent from the Tuesday order, as she was on the one on October 10. She preferred not to wipe out the lower court decisions against the restrictions.
It will take at least a few weeks for the new appeals in the two cases to reach the Supreme Court, but the appeals courts are expected to move on expedited schedules. There seems little doubt that the side that loses in each of those appeals courts will then seek to take their cases on to the Supreme Court. The Justices will have the option of granting or denying review when such appeals reach them.
The order by the Justices on Tuesday, ending the pending Hawaii case, involved both aspects of that particular lawsuit: a temporary suspension of entry into the U.S. of foreign nationals from six Muslim nations and the temporary suspension of entry by refugees from around the globe.
The Justices had not taken action earlier to remove the Hawaii case from its docket, because the part of that case involving refugee admissions was still in effect, until it expired earlier today.
The third presidential order deals only with restrictions on foreign nationals from six countries, some of which were not covered by the second order. More importantly, the third order makes those limitations permanent.
The latest Trump order does not deal in any way with admissions of refugees, but the Administration had told the Supreme Court earlier that once the suspension of refugees had expired today, they would be adopting new provisions, and would then notify the court about those.
The challengers in the Hawaii case are expected to pursue a new challenge to any newly adopted limits on entry of refugees.