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Summertime Blues for the President’s Travel Ban Executive Order?

As we enter the dog days of Summer, the Fourth Circuit Court of Appeals upheld a nationwide preliminary injunction issued by the US District Court for the District of Maryland enjoining the implementation of  President Trump’s second Executive Order, travel ban restricting nationals of six Muslim-majority countries from being issued visas and entering the United States. In the case, International Refugee Assistance Project (IRAP) v. Trump, 10 of the 13 judges that heard the case, upheld most of a District Court’s injunction against the president’s revised executive order. Chief Judge Gregory’s introduction eloquently encapsulates the seventy-nine page opinion of the majority:

The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866), remains “a law for rulers and people, equally in war and in peace.” And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation. Therefore, for the reasons that follow, we affirm in substantial part the district court’s issuance of a nationwide preliminary injunction as to Section 2(c) of the challenged Executive Order.

IRAP v. Trump, Opinion No. 17-1351, pg. 12 (4th Cir. May 25, 2017).

The Trump administration indicated it intends to appeal this decision to the US Supreme Court. However, the Executive Order travel ban remains on hold while proceedings continue in the lower court. In addition, the Ninth Circuit Court of Appeals is expected to rule on a similar challenge in State of Hawaii, et al. v. Trump. Perhaps, judicial fireworks are in store just in time for the Fourth of July.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume VII, Number 151

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About this Author

Gregory Wald, Immigration Attorney, Squire Patton Boggs Law Firm
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Gregory Wald’s experience includes representing multinational and Fortune 500 companies and individual clients in all aspects of immigration law including nonimmigrant visas, and immigrant matters regarding multinational executives and managers, individuals of extraordinary ability and professionals.

He has appeared before the US Department of Homeland Security (DHS), US Department of Labor, US Department of Justice Executive Office for Immigration Review and various federal courts.

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