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Global

Trump Travel Ban Headed to Supreme Court

By Elizabeth West / 26 May 2017 / Contact Reporter
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The Richmond, Va., Fourth Circuit Court of Appeals yesterday upheld the nationwide injunction on President Donald Trump's second executive order restricting residents from six majority Muslim countries from acquiring visas to enter the U.S. In the majority opinion, Chief Judge Roger Gregory wrote that the order, issued March 6, "speaks with vague words on national security but in context drips with religious intolerance, animus and discrimination." Attorney General Jeff Sessions has confirmed that the administration will appeal to the Supreme Court.

Trump had revised the original executive order, calling for a 90-day suspension of visas for nationals from six countries and eliminating Iraq from the list but retaining Iran, Libya, Somalia, Sudan, Syria and Yemen. It also suspended the U.S. refugee resettlement program for 120 days and reduced by more than half the number of refugees allowed into the U.S. overall.

The Department of Justice appealed the case, originally decided by Maryland District Court Judge Theodore Chuang, to the Fourth District Court. Arguments were heard on May 8 by a 13-judge panel. A hearing before the full panel of judges was a departure from a three-judge panel that would typically hear such cases. The 10-3 decision split directly down political affiliation, as the court's 10 Democrat-appointed judges joining in the majority opinion and three Republican-appointed judges dissented. 


[The executive order issued on March 6] speaks with vague words on national security, but in context drips with religious intolerance, animus and discrimination."

Fourth District Court Chief Judge Roger Gregory

The "context" referenced in Gregory's majority opinion included campaign statements made by then-presidential candidate Trump, as well as statements made both by Trump and his surrogates since he took office Jan. 20. These statements supported the court's conclusion that the second executive order—as well as the original order issued Jan. 27—were constructed as an attempt to make good on campaign promises to implement "a total and complete shutdown of Muslims entering the United States," as outlined in Trump's Statement on Preventing Muslim Immigration, which was available on his campaign website until it was removed just prior to May 8, when Fourth District Court heard the oral arguments in the case.

Gregory listed televised interviews and statements made at political rallies that, in the court's view, indicated the true intentions of the executive order, including a rally statement in which Trump called the second order a "watered-down version" of the first order and a televised interview with former New York City Mayer Rudy Giuliani, who told Fox News that Trump had asked him to devise an immigration ban within the bounds of legality. The court leaned on this line of external context to uphold the lower court's ruling that the executive order potentially violated the Establishment Clause of the Constitution, which prohibits the government from passing laws that establish a state religion but also prohibits preferring any one religion over another.

The Ninth Circuit Court of Appeals in San Francisco is reviewing a similar but slightly broader injunction against the travel ban, originally decided by a district court in Hawaii and appealed in early March. Known by many conservatives as the "nutty Ninth"  for its liberal-leaning rulings, the San Francisco court is widely expected to uphold the lower court's injunction of the ban. Maryland's Fourth Circuit Court has a historic reputation as conservative court friendly to national security cases. Under Obama, the court turned sharply toward diversity and a more liberal bent, making it less of a bellwether for cases that rise to the Supreme Court.

In a dissenting opinion, Judge Paul Niemeyer argued that campaign statements were “shorthand for larger ideas” and could not be used as context or to establish intent. “Because of their nature, campaign statements are unbounded resources by which to find intent of various kinds,” he wrote.

As the case heads to the Supreme Court, eyes will be on Neil Gorsuch, President Trump's newly appointed justice. The vacancy on the bench as the original executive order marched through the appeals process was undoubtedly a powerful motivation for the Trump team to abandon the first order and begin again, knowing that a later Supreme Court hearing likely would include a Trump-appointed justice.

Corporate Travel Industry Implications

Immigration concerns are high on the list of anxieties for international travelers entering the U.S., as evidenced by a recent American Express Global Business Travel/Association of Corporate Travel Executives survey of 239 travel managers showed that 54 percent said travelers have expressed growing worry about traveling to the U.S. as changes to visa requirements and immigration policies loom. Trump's rumored expansion of the electronics ban, which could hit whenever, has more travelers and travel managers worried about productivity.

“Our members told us the travel bans were bad for their businesses, bad for their travelers and bad for jobs in the travel industry," said ACTE executive director Greeley Koch. "These policies created uncertainty for not only business travelers trying to come into the U.S,, but also for those based in the U.S. traveling abroad, as it was not clear whether they would have the correct documentation to return. We call on the administration to create a more cohesive immigration and security policy that takes into consideration the voices of those who are moving the U.S. economy forward.”

The Global Business Travel Association estimated late last week that the U.S. would lose $1.3 billion in travel-related revenue this year thanks to Trump's travel policies. This did not include revenue from meetings-related business travel.

This was before Trump's proposed budget was released, which abolished the Brand USA marketing initiative that since 2009 has promoted the U.S. as a travel destination to international travelers.

According to the U.S. Travel Association, Brand USA generated 4.3 million visitors to the U.S. from other countries, which added $29.5 billion to the U.S. economy. Not only that, Brand USA generates an average of 50,900 new U.S.-based jobs annually from the increases in international travelers to the U.S. The association also pointed out that Brand USA does not spend federal taxpayer dollars.

More Global
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