Written by Don Byrd

The Supreme Court has agreed to hear the Trump Administration’s appeal in the challenge to the latest “travel ban” Executive Order issued by the President. In granting cert, the Court specifically asked the parties to address the question of whether the Executive Order, which restricts immigration from certain countries, violates the Establishment Clause.

The Ninth Circuit Court of Appeals upheld an injunction halting the third and latest iteration of the travel ban on the grounds that the Order exceeds the President’s limited authority to regulate the entry of immigrants. In so ruling, the appeals court did not address the argument put forward by the State of Hawaii that the Executive Order improperly aliens on the basis of religion. The Supreme Court however, signaled an interest in the church-state question by asking both sides to brief that issue.

A previous version of the travel ban was found by multiple courts to violate the Establishment Clause, because it focused solely on Muslim-majority countries and because it seemed to codify proposals made by then-candidate Trump to bar Muslims from entering the United States. Hawaii argues that the latest travel ban (EO-3), which added countries like North Korea and Venezuela that are not majority Muslim, is a continuation of the previous dubious order.

Here is an excerpt from their brief:

In design and effect, EO-3 continues the same unlawful policy. It expressly acknowledges that it emerged as a result of EO-2, and it indefinitely continues the bulk of EO-2’s entry suspensions. Furthermore, the President has repeatedly explained that the two orders pursue the same aim. . . .  Moreover, the order operates in a manner at odds with the primary secular rationale it asserts. And the addition of two non-Muslim countries appears almost entirely symbolic . . . Indeed, one might be forgiven for assuming that these countries were added primarily to improve the Government’s “litigating position,” rather than to achieve any legitimate substantive goal. In short, an objective observer would still conclude that EO-3’s purpose is the fulfillment of the President’s unconstitutional promise to enact a Muslim ban.

Assuming the Court schedules oral argument before the end of the term, a decision would be expected this summer.