On December 4, 2017, the U.S. Supreme Court issued two orders (available here and here) that allow the Presidential Proclamation of September 24, 2017, otherwise known as the “Travel Ban,” to go into effect while appeals continue in the lower courts. The practical effect of SCOTUS’s actions is to reinstate this version of the Travel Ban fully. See our earlier blog entry, New Presidential Proclamation Modifies Travel Ban; SCOTUS Reacts, for a full explanation of which countries are targeted in the revised Ban and which citizens of those countries are subject to U.S. travel restrictions under the Ban.
In October, a federal judge in Maryland granted a temporary injunction preventing the revised Ban from going into effect against those who have a bona fide relationship with a U.S. person or entity. Another federal court, in Hawaii, also blocked implementation of the Ban. However, the government appealed those rulings to the federal appellate courts for the Fourth and Ninth Circuits, respectively, where the issues remain pending. In November, the government went higher still, asking the Supreme Court to allow full enforcement of the Ban while the Fourth and Ninth Circuits consider the government’s appeals of the lower courts’ injunctions. SCOTUS has now granted that request, although, as each order specifies, Justices Ginsburg and Sotomayor were not in favor of granting. Both federal appellate courts will hold oral arguments this week, and both have agreed to expedite their decisions so that the Maryland and Hawaii cases may move forward quickly.
If either or both Circuits eventually rule against the government, thereby leaving the lower courts’ injunction in place, the government could ask the Supreme Court to review those rulings. If that happens and SCOTUS refuses to hear the government’s request for review, then SCOTUS’s orders will automatically terminate, thereby putting the Travel Ban on hold yet again, until final decisions are made in the Maryland and Hawaii federal courts.