About Us  |  About Cheetah®  |  Contact Us

17 AGs oppose Trump administration’s ‘travel ban’ petition for certiorari

By Pamela Wolf, J.D.

On June 12, the day the Ninth Circuit issued its opinion upholding a Hawaii district court’s injunction against parts of President Trump’s so-called “travel ban,” New York Attorney General Eric T. Schneiderman announced that a coalition of 17 attorneys general have filed a pair of amicus briefs in the Supreme Court opposing the travel ban. One of those briefs opposes the Trump administration’s petition for certiorari seeking review of the Fourth Circuit’s ruling affirming, in principle part, a Maryland federal court’s nationwide preliminary injunction against enforcement of Section 2(c) of Trump’s March 9 Executive Order 13780, which suspended for 90 days the entry of foreign nationals from six countries, subject to case-by-case waivers. The second amicus brief opposes the federal government’s request for temporary stays of the injunctions imposed by courts against the travel ban.

The Justices have not yet determined whether they will take up the petition for certiorari in Trump v. International Refugee Assistance Project (IRAP) (No. 16-1436), which was filed on June 1.

On the frontlines of the battle. The attorneys general have been on the frontlines of the battle against the controversial executive orders that would implement the travel ban, which many see as a “Muslim ban.” In a press release, Schneiderman noted that the attorneys general have also directly filed suit against President Trump’s first and second immigration bans. “Since Day One, Attorneys General have not hesitated to fight back against President Trump’s unlawful and unconstitutional executive orders, bringing legal action in courts around the country to successfully stop both the first and second bans,” Schneiderman said. “As we’ve argued, President Trump’s second executive order is just a Muslim Ban by another name—and the courts have agreed.”

Decline review at this point. In this latest effort, the amicus brief authored by Schneiderman asserts that the preliminary injunction against the immigration ban should be maintained and the Supreme Court should not review the decision at this point. The amici states assert that the appeals court correctly affirmed the injunction on the grounds that Section 2(c) likely violated the Establishment Clause, and that the potential for nationwide harm justified broad nationwide relief.

Moreover, the amici argue, the travel ban that the government’s petition seeks to reinstate is only a few days away from expiring, and that expiration will moot the questions presented by the petition for certiorari. Even if Section 2(c) were to remain effective beyond its June 14 expiration date, certiorari should be denied for these reasons, according to the states:

  • the terms of the second EO make plain that petitioners will in the near future move on to a new policy based on new facts;
  • consideration of petitioners’ issues now would waste judicial resources on piecemeal litigation, because the Establishment Clause challenge to Section 2(c) that forms the basis for the injunction entered below is only one of several challenges to the second EO contained in the complaint, while the other challenges remain pending for resolution below; and
  • the petitioners’ legal issues have been considered by only two courts of appeals, there is no conflict between those courts’ holdings, and the High Court’s consideration of the issues would benefit from further percolation.

The states argue that any one of these factors provides an independently sufficient reason to deny certiorari.

Immediate adverse impact. In a brief authored by Virginia Attorney General Mark Herring and Maryland Attorney General Brian Frosh, the amici states argue that if the travel and refugee bans were permitted to take effect (via the Supreme Court’s staying of injunctions imposed by courts) they will be irreparably harmed. “The immediate adverse impact will be felt by our colleges and universities, with effects rippling through our economies based on disruptions to persons seeking to travel to the United States on student, family, work, and tourist visas, or to resettle as refugees,” according to the amicus brief. “Reinstating the travel and refugee bans would also send an unmistakable message of exclusion and religious intolerance that would harm our communities.”

In view of the irreparable harm that a stay would impose on the states and their residents, and the federal government’s “failure to adduce any evidence of harm resulting from the preliminary injunctions,” the amici urge the Justices to leave the injunctions in place while the litigation in the IRAP and Hawaii cases proceed to final judgment.

The two amicus briefs were filed by 17 attorneys general, including New York, Virginia, Maryland, California, Connecticut, Delaware, Illinois, Iowa, Maine, Massachusetts, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia.