By Gregory Korte and Richard Wolf, USA Today; Additional material provided by BJC Staff Reports

WASHINGTON (USA Today with BJC Staff Reports) – The U.S. Supreme Court dismissed a major challenge to President Donald J. Trump’s travel ban on Muslim-majority countries because it has been replaced by a new version, sending the controversy back to the starting block.

The Oct. 10 ruling is a victory for the Trump administration, which had asked the Supreme Court to drop the case after President Trump signed a proclamation Sept. 24 that replaced the temporary travel ban on six nations with a new, indefinite ban affecting eight countries. That action made the court challenge moot, the justices ruled.

“We express no view on the merits,” the justices said in a one-page order.

The decision effectively wipes the record clean in the U.S. Court of Appeals for the 4th Circuit, one of two federal appeals courts that had struck down major portions of the president’s travel ban. That case began in Maryland.

A separate case from the 9th Circuit, based in California, remains pending because it includes a ban on refugees worldwide that won’t expire until later in October. But the Supreme Court is likely to ditch that case, which began in Hawaii, as well.

The challengers in both cases already have renewed their lawsuits in the lower courts, starting the legal process anew. In Maryland, a federal district court scheduled a new hearing for mid-October.

But the new travel ban and the Supreme Court’s order vacating the 4th Circuit appeals court judgment puts the administration in a somewhat stronger position, at least for now.
Justice Sonia Sotomayor dissented from the Supreme Court’s action. She would have dismissed the case, but in a way that would have preserved the appeals court ruling against the ban, rather than vacating it.

The 4th Circuit case was brought by the International Refugee Assistance Project, which argued that banning travel from six Muslim-majority countries violated the First Amendment’s guarantee of freedom of religion. That appeals court determined that the ban amounted to religious discrimination in violation of the Establishment Clause by targeting those from predominantly Muslim countries.

Under its original schedule, the Supreme Court would have heard the case Oct. 10, but the Court delayed the oral argument after Trump replaced his earlier order. The new version followed a three-month review of immigration procedures.

The BJC joined an amicus brief to the U.S. Supreme Court in the previously scheduled case, along with an interfaith coalition of individuals and organizations. The brief argued that President Trump’s Executive Order “selectively burdens Muslim-majority countries while exempting comparable Christian-majority countries” in violation of the Establishment Clause of the First Amendment.

The other brief signers included individual clergy and houses of worship along with a few national groups, including the Muslim Public Affairs Council, the National Council of Churches and the Sikh Coalition. The brief took a unique angle of examining the Executive Order and its stated justification for selecting the countries, finding that — based upon the report the Order claims to rely upon — two Christian-majority countries fit the stated criteria better than at least one of the included countries.

The latest travel ban targets five countries included in two previous versions — Iran, Libya, Somalia, Syria and Yemen — as well as Chad, North Korea and Venezuela. Unlike the earlier bans, it treats some countries and types of travelers, such as students or tourists, differently than others.

The administration told the justices that the new ban is “based on detailed findings regarding the national security interests of the United States that were reached after a thorough, worldwide review and extensive consultation.”

The ban’s challengers argued that the case against the last version should go forward because many of the same travelers and their families are adversely affected — not just for 90 days, but indefinitely.

The American Civil Liberties Union, which brought the 4th Circuit challenge on behalf of the refugee group, had said charges of anti-Muslim discrimination still applied “despite some new window dressing” — a reference to the addition of North Korea and Venezuela.

Hawaii, which brought the 9th Circuit challenge, warned the justices that elements of the earlier ban still could be revived, since Trump has said he wants a “much tougher version.”

As the legal developments continue, BJC Executive Director Amanda Tyler noted that the Baptist Joint Committee’s mission remains clear. “The BJC will continue to denounce any government action that uses a person’s faith as a reason for exclusion or any policy rooted in anti-Muslim animus,” she said.

From the September/October 2017 edition of  Report from the Capital. You can also read the digital version of the magazine or view it as a PDF.