The Travel Bans

2017-18 Cato Supreme Court Review 29 (2018)

30 Pages Posted: 9 Oct 2018  

Josh Blackman

South Texas College of Law Houston

Date Written: September 17, 2018

Abstract

Historically, most landmark cases that present foundational constitutional questions trickle up to the Supreme Court over the course of several years. During that deliberative process, advocates on both sides could develop arguments and implement a carefully-crafted litigation strategy. Other landmark cases race to the Supreme Court following major crises. These latter cases arose out of true exigencies: the judiciary was forced to mobilize in response to an emergency that the other branches were unable to resolve.

Trump v. Hawaii fits into neither category: the legal issues were not difficult and the circumstances were not exigent. Without question, the president has the statutory and constitutional authority to deny entry to aliens from certain countries based on national-security concerns. Yet, the judiciary still moved at warp speed to halt President Donald Trump’s signature policies. Why? The “travel bans”—which denied entry to aliens from predominantly Muslim nations—traced their roots to overtly anti-Muslim statements made by then-candidate Trump. Furthermore, the government could only offer the faintest patina of a rational basis to defend the policies. Confronted with these facts, the lower courts uniformly enjoined the travel bans. Ultimately, only the Supreme Court upheld the final version in its entirety. This essay recounts the travel bans’ 18-month litigation blitz.

This contribution to the Cato Supreme Court Review provides an early assessment of Trump v. Hawaii. Part I discusses the first iteration of the travel ban, which President Trump signed one week after his inauguration. Part II dissects Travel Ban 2.0. Part III introduces Travel Ban 3.0, which was announced in September 2017. This policy—designed to be permanent—was promptly challenged in district courts. Once again, nationwide injunctions were affirmed by the courts of appeals. Yet, in December 2017, the Supreme Court permitted the entire policy to go into effect. This decision was a conclusive indication that the lower courts had gone astray. As a result, there should have been no surprises when, in June 2018, the Supreme Court upheld the third iteration in its entirety. Now that this saga has drawn to an anti-climactic close, Part IV places the travel ban in perspective.

Suggested Citation

Blackman, Josh, The Travel Bans (September 17, 2018). 2017-18 Cato Supreme Court Review 29 (2018). Available at SSRN: https://ssrn.com/abstract=3249801

Josh Blackman (Contact Author)

South Texas College of Law Houston ( email )

1303 San Jacinto Street
Houston, TX 77002
United States

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