On February 9, 2017 the 9th Circuit Court of Appeals unanimously upheld the ruling of the lower court putting a halt to the Trump Administration’s travel ban. The hearing was on a fairly narrow issue. The legality of the travel ban on seven majority Muslim countries was not before the court, rather the questions on appeal was whether the travel ban should be halted while courts consider the legality of the ban in its own right. The reason this narrow issue was before the court, and the reason the ban was halted in the first place, was because a 9th Circuit Federal District Court granted a temporary restraining order halting the travel ban while litigation is pending on the full legality of the executive order. It was that decision that was confirmed on appeal.
The 9th Circuit Court of Appeals reasoned that the States that are suing the Trump Administration are likely to win their claim that the travel ban violates the due process clause of the United States Constitution. The Court stated that those due process protections extend not only to US citizens but to aliens in the country, as well as to some aliens attempting to re-enter the United States after traveling abroad. The Court went on to take note of the fact that the travel ban targets Muslim majority countries and provides exemptions for certain religious minorities. However, it stopped short of holding that the travel ban would run afoul of the Establishment Clause and the Equal Protection clause of the Constitution.
So what exactly are Due Process, the Establishment Clause, and the Equal Protection Clause? Due process is encoded in the Fifth and Fourteen Amendments to the United States Constitution. It protects individuals from arbitrary denial of life, liberty or property by the Government. The Due Process clause ensures that individuals receive a fair hearing in our courts and that laws are not vague and applied arbitrarily. Equal protection is a clause of the Fourteen Amendment to the United States Constitution. The clause provides that the government shall not deny any person the equal protections of the laws. The equal protection clause was the basis for Supreme Court decisions that helped to dismantle racial segregation, to protect women from sex discrimination, and to guarantee the right of marriage to same sex couples. The Establishment Clause is encoded in the First Amendment. It prohibits any law respecting an establishment of religion, preventing laws that have a religious, rather than secular, purpose.
In regards to Due Process, the Court reasoned that the “Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel. Indeed, the Government does not contend that the Executive Order provides for such process. Rather . . . the Government argues that most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause.” It concluded that for the limited purpose of the temporary restraining order, “it is enough for us to conclude that the Government has failed to establish that it will likely succeed on its due process argument on appeal.”
In regards to religious discrimination, the Court noted that “the States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims.” In support of their argument the States brought up evidence of Trump’s statements on the campaign trail about his intention to implement a Muslim ban. The Court went on to state that evidence of the purpose beyond the written words of a challenged law may be considered in determining whether it violated the Establishment and Equal Protection Clauses. However, the Court decided that because “the Government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim, we reserve consideration of [the Establishment and Equal Protection] claims until the merits of the appeal have been fully briefed.
While this decision is a major vindication for those opposed to the Trump Administration’s executive order, the legal battle on this issue is not over. If you are currently in the United States, are a citizen of one of the seven countries included in the Trump Administration’s travel ban, and are a lawful permanent resident or here on an non immigrant visa, you should not travel outside of the United States. A non immigrant visa is any temporary visa, such as a student visa or an H1-B visa. If you intend to travel to the United States from abroad and you currently have a valid immigrant or non immigrant visa, there are no guarantees as to how long the travel ban will be halted and you should proceed to make travel plans accordingly.
The current political situation is uncertain, and unfortunately you will need to wait for the legal battle to play out. Even if the Trump Administration loses on the constitutionality of the executive order, we do not know how it will seek to achieve its aims. The Administration could try to rewrite the ban or to implement some version of it in a way that would comply with the court order, and at the moment there is no indication of how they plan to proceed other than continuing the press forward with this court battle.