U.S. Supreme Court

Courts have power to review travel ban, enforce limits on executive power, ABA says in SCOTUS brief

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The ABA argues in a U.S. Supreme Court amicus brief that courts have the power to determine whether President Donald Trump’s latest travel bans violates the establishment clause and a statutory ban on national origin discrimination in immigration.

The Supreme Court should “exercise its full power of judicial review to preserve and enforce fundamental constitutional and statutory limits on executive power,” the ABA brief says.

The ABA filed the brief late Friday, according to a press release. Arguments in the case, Trump v. Hawaii, are scheduled for April 25, according to an ABA Journal analysis of the case by University of California at Berkeley law dean Erwin Chemerinsky.

The third and latest travel ban, issued last September, restricts travel to the United States from eight countries, including six predominantly Muslim nations. The eight countries on the list are Iran, Libya, Somalia, Syria, Yemen, Chad, North Korea and Venezuela. According to the ABA brief, the two countries on the list that don’t have a majority-Muslim population are subject only to “token restrictions.”

The travel ban “raises the same grave concerns as its predecessors—that it is in purpose and effect the ‘Muslim ban’ that the president himself has called it, that it exceeds the president’s statutory authority, and that it transgresses fundamental constitutional bounds,” the brief says.

The administration had argued that the president has broad authority under the Constitution and federal law to suspend or restrict immigrants from the country based on his assessment of national interest, and that decision can’t be reviewed in federal court.

The ABA counters that accepting the government’s position “would eviscerate the most fundamental task of this court—to say what the law is, even when that law touches on sensitive subjects like foreign relations and national security.”

The courts have the power to review the case, and the plaintiffs have standing to assert a violation of the establishment clause, the ABA says.

If the court reaches the establishment clause issue, it should reject the government’s contention that the court’s analysis is limited to the four corners of the president’s travel ban proclamation, the ABA argues. Statements by the president and his advisers making clear that the travel ban is intended to target Muslims should not be ignored, according to the brief.

The ABA also disputes the government’s assertion that courts don’t have the power to issue “global” injunctions that apply to nonparties. “The rule the government invites this court to adopt has no basis in this court’s precedent, which has long recognized the broad remedial discretion federal courts enjoy in redressing executive actions that transgress statutory or constitutional bounds,” the brief says.

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