Trump’s Travel Ban – What the Supreme Court Must Consider

President Donald Trump’s Travel Ban is heading to the Supreme Court in October after months of legal hearings. It is likely to be one of the most important cases the new look Supreme Court will decide.

In June, the highest court in the land allowed some parts of the travel ban to go ahead pending its hearing.

The court permitted the ban to go into effect for foreign nationals who lack a “bona fide relationship with any person or entity in the United States.”

In an unsigned opinion the court, left Trump’s travel ban against citizens of six majority-Muslim countries on hold as it related to non-citizens who had relationships with people or entities in the United States. This included most of the plaintiffs’ cases brought against the travel ban.

Examples of formal relationships include employees who accepted a job with a company in the US, and students accepted to universities in the United States, the court said.

Trump's Travel Ban is before the Supreme Court

Trump’s Travel Ban Will be held by the U.S. Supreme Court

The original travel ban caused chaos at airports in January when Trump issued an executive order. That ban was later suspended by the courts. A revised ban removed Iraq from the list of majority Muslim counties it affected and softened some of the other aspects.

Most reports suggest the partial implementation of the travel ban in the summer caused considerably less disruption than the original ban.

In an opinion piece in the Washington Post, Adam Chilton and Genevieve Lakier, assistant professors of law at the University of Chicago Law School outlined the issues the justices will need to get to grips with when they consider the travel ban in October.

The justices will consider whether the president exceeded his constitutional authority.

Chilton and Lakier wrote the justices will have an opportunity to consider the long-standing legal principle known as the “plenary power doctrine.”

The doctrine gives the President of the United States and Congress power to take action over immigration law.

The academics argue the hearing would give the court to seize the opportunity to finally rid the legal system of this “outdated doctrine.”

Plenary power can be traced back to 1889 when the highest court in the land unanimously upheld a law barring Chinese laborers from returning to the United States once they left the country. The case has been used to give very broad discretion to politicians over who should be admitted to the United States.

The plenary power doctrine has led to some questionable decisions. It has been used to bar communists from the United States and to uphold laws that make it more difficult for men than women to pass citizenship on to their kids.

Chilton and Lakier argue the plenary power doctrine is outdated and has been used to justify racist decisions.

They said while the lower courts were concerned that Trump’s travel ban was motivated by anti-Muslim sentiment, they found “creative ways” to argue the ban did not deserve the deference the plenary power doctrine has been given. They concluded:

“It’s easy to understand why: Lower courts do not have the authority to overturn Supreme Court opinions. But the Supreme Court can overturn its own precedents, and it should take this opportunity to squarely reject the plenary power doctrine as both outdated and unnecessary.”

It remains to be seen if the nation’s highest court will overturn this fundamental piece of law.

However, the futures of thousands of people from six countries in the United States hang on the court’s ruling.

If you have been impacted by Trump’s travel ban, it makes sense to talk to an experienced Austin criminal defense lawyer. Call us at (512) 474-4445.

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