- The Washington Times
Thursday, October 5, 2017

The legal challenges to President Trump’s old travel ban should be tossed out, the administration told the Supreme Court on Thursday, saying the updated policy the White House issued last month is “substantially” different, and sets the ban on firm legal footing.

In a letter requested by the justices, Solicitor General Noel J. Francisco said the revisions Mr. Trump made, adding several new countries to the ban list and deleting one country from the list, while altering the visa restrictions, makes the new policy different from the previous executive orders.


He asked the Supreme Court to not only toss the case, but also vacate lower court rulings that had halted some parts of the ban, forcing the government to admit those who had “close” ties to American persons or institutions, such as family or job prospects.

“Leaving intact the lower courts’ judgments potentially could inflict serious damage on the President’s ability to protect national security, conduct foreign affairs, and formulate Executive Branch policy,” Mr. Francisco said.

Hawaii, one of the chief plaintiffs that challenged the earlier travel ban in court, said it believes the case is still live because Mr. Trump hasn’t admitted the previous policy was wrong and could revive it at any time.

“The president himself has expressed his desire to return to a ‘much tougher version’ of the bans,” Neal Kumar Katyal, a former acting solicitor general for President Obama who is now representing Hawaii, said in his own brief.

He said the court would be rewarding the Trump administration unfairly if it allowed the updated policy to overtake the rest of the case.

Mr. Katyal said the court could either keep the case alive, or else decide it’s not yet ripe, and let it bubble back up through the courts that have already ruled.

The filings came as the justices try to figure out what to do with the evolving case.

They had scheduled oral argument for next week but postponed that after Mr. Trump issued his updated policy two weeks ago. Instead, they said, both sides should submit briefs arguing about how to proceed.

After Mr. Trump issued the first two versions of his travel ban in January and March, lower courts had moved to defang them, ruling that his comments during the campaign showed animus toward Muslims that played out in his decision to impose a 90-day halt on entry from a number of majority-Muslim nations, and to pause all refugee admissions for 120 days.

The March order applied the 90-day halt to Iran, Libya, Sudan, Somalia, Syria and Yemen.

A number of Democratic-appointed federal judges ruled that the ban went too far, and issued wide-ranging injunctions.

The Supreme Court in June rolled back those injunctions in part, saying that while Mr. Trump had significant national security powers granted him by Congress to control entry to the U.S., Americans and other U.S. entities also had rights that needed to be respected.

As an interim compromise, lasting until they heard the full case, the justices said the government couldn’t deny entry to those with close family relationships or who had ties to American businesses, schools or other entities.

That set off a new round of legal wrangling, with lower courts again punching holes in the administration’s plans and the Supreme Court partly rolling back those antagonistic rulings.

If the Supreme Court agrees with the administration’s request, it would end all of that litigation.

But it would likely spark a new series of cases based on the updated policy, which deleted Sudan from the ban list while adding Chad, North Korea and Venezuela.

Mr. Francisco said that’s the way the legal fight should play out.

“The lower courts should be considering challenges to the Proclamation anew based on its text, operation, and findings—all of which are materially different from the Order,” he wrote to the justices.


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