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Appeal of Revised E.O. Before SCOTUS Deemed Moot

New Travel Restrictions Challenged in Separate Federal Court Actions
Marc D. Katz, Isabel Crosby and Jayde Ashford Brown
October 24, 2017

As detailed in our previous alert on this issue, on September 24, 2017, President Trump issued a Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats (“Presidential Proclamation”) that revises President Trump’s second Executive Order regarding travel restrictions (“Revised E.O.”) by: 1) removing the travel restrictions previously imposed against Sudan; 2) adding travel restrictions against Chad, North Korea, and Venezuela; and 3) making the travel restrictions indefinite rather than temporary. In the wake of this most recent Presidential “travel ban,” the United States Supreme Court deemed the pending appeals regarding the Revised E.O. moot because it “expired by its own terms,” and shortly thereafter, two lower federal courts in Hawaii and Maryland enjoined the Presidential Proclamation, which was intended to replace the Revised E.O., just a day before it was to take effect. Employers who are monitoring how the travel restrictions might impact their business should stay tuned for further developments following the Hawaii and Maryland injunctive orders.

The United States Supreme Court Deems Appeal of Revised E.O. Moot

We previously noted, that on September 25, 2017, the United States Supreme Court removed from the oral argument calendar cases from the United States Court of Appeals for the Ninth and Fourth Circuits, which enjoined key provisions of the Revised E.O., and ordered the parties to file letter briefs on or before October 5, 2017, addressing whether, or to what extent, the Presidential Proclamation may render the cases moot. On October 10, 2017, the United States Supreme Court held that because the Revised E.O. “expired by its own terms” on September 24, 2017, the United States Government’s appeal of the consolidated cases no longer presents a “live case or controversy.” Accordingly, the Court remanded the case to the Fourth Circuit Court of Appeals with instructions to dismiss as moot the challenge to the Revised E.O.

Two Federal Court Actions Filed

In early October 2017, shortly after the Presidential Proclamation was issued, several plaintiffs’ groups—a combination of individuals and organizations—in Hawaii and Maryland filed federal court complaints seeking emergency injunctive relief against the Presidential Proclamation on various statutory and constitutional grounds.

The District Court of Hawaii Enters Nationwide Temporary Restraining Order

On October 17, 2017, one day before key provisions of the Presidential Proclamation were scheduled to take effect, the United States District Court for the District of Hawaii entered a nationwide temporary restraining order (“TRO”) enjoining the United States Government from enforcing or implementing Sections 2(a), (b), (c), (e), (g), and (h) of the Presidential Proclamation. The court concluded that:

  1. plaintiffs met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim;
  2. irreparable injury would be likely if the court did not grant the requested relief; and
  3. the balance of the equities and public interest weighed in favor of granting the temporary restraining order.

Specifically, the court stated that Presidential Proclamation ignores the guidance previously afforded by the Ninth Circuit Court of Appeals and “suffers from precisely the same maladies as its predecessor” because it:

  1. lacks sufficient findings that the entry of more than 150 million nationals from six specified countries would be detrimental to the interests of the United States; and
  2. plainly discriminates based on nationality in the manner that the Ninth Circuit has found antithetical to both Section 1152(a) of the Immigration and Nationality Act (“INA”), which bars discrimination on the basis of nationality in the issuance of immigrant visas, and the founding principles of the United States of America.

In light of the court’s order, visa applicants who are nationals of Chad, Iran, Libya, Somalia, Syria, and Yemen are not subject to any of the restrictions under the Presidential Proclamation. However, the order does not affect Sections (d) and (f) of the Proclamation; thus, as of October 18, 2017, nationals from North Korea and Venezuela remain subject to the travel restrictions in the Presidential Proclamation.

On October 17, 2017, the White House Office of the Press Secretary released an official Statement Regarding Court Action Affecting the President’s Proclamation Regarding Travel to the United States by Nationals of Certain Countries and indicated that the United States Department of Justice will appeal the district court decision.

On October 20, 2017, the District Court for the District of Hawaii converted the TRO into a preliminary injunction, which will remain in place during the Department of Justice’s appeal.

The District Court of Maryland Issues a Nationwide Preliminary Injunction Against Portions of the Presidential Proclamation

On October 17, 2017, hours after the Hawaii decision, a federal judge in Maryland issued a nationwide preliminary injunction against Section 2 of the Presidential Proclamation. Specifically, the court noted that the Presidential Proclamation appears to be the “latest incarnation” of the “Muslim ban” originally promised by President Trump as a candidate for the presidency, and thus, violates the Establishment Clause of the First Amendment to the United States Constitution. Notably, the court found that the inclusion of two non-majority Muslim nations, North Korea and Venezuela, does not persuasively show a lack of religious purpose behind the Presidential Proclamation and that the Presidential Proclamation fails to adequately explain the need for the specific information-sharing response of an “unprecedented, sweeping nationality-based travel ban against majority-Muslim nations.”

Additionally, the Maryland court held that the plaintiffs are likely to succeed on the merits of their claim that the Presidential Proclamation violates the non-discrimination provision of Section 1152(a) of the INA to the extent that it bars entry by immigrants on the basis of nationality. The court further noted that where the Presidential Proclamation fails to include a specified end date or requirement for renewal, it has effectively stopped the issuance of immigrant visas to immigrants from the designated countries indefinitely and, consequently, is the equivalent of a ban on issuing immigrant visas based on nationality.

The court’s preliminary injunction is limited to barring enforcement of Section 2 against those individuals who have a credible claim of a bona fide relationship with a person or entity in the United States. Like the Hawaii court, the Maryland court held that the injunction does not apply to travelers from Venezuela or North Korea because the balance of equities favors the United States Government’s position with respect to those two countries.

The Andrews Kurth Kenyon Labor & Employment team will monitor judicial review of the Presidential Proclamation and issue additional updates as warranted.


For questions and additional information, including assistance with compliance issues or details about our training offerings, please contact one of our Labor & Employment Section attorneys.

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