Supreme Court to Review National Security Proclamation

The United States Supreme Court has announced it will review the decision of the Ninth Circuit Court of Appeals, which upheld a Hawaii federal court’s injunction blocking the implementation of President Trump’s National Security Proclamation. The Proclamation is intended to begin enhanced vetting procedures of foreign nationals seeking entry into the United States.

The Proclamation, issued in late September, fulfilled the promise of President Trump’s March 6, 2017 National Security Executive Order. The March 6th Order, among other things, called for a global review by the Secretary of Homeland Security of nearly 200 countries to determine whether they provide sufficient information about their nationals seeking entry into our country. The Secretary was to report the findings to the President. During the review, there was supposed to be a 90-day suspension of entry into this country of nationals from six countries with terrorism concerns (Iran, Libya, Somalia, Sudan, Syria, and Yemen).

As a result of the global review, the Secretary informed the President that eight countries (Chad, Iran, Syria, Libya, Somalia, North Korea, Venezuela, and Yemen) did not satisfy the security criteria. After review and consultation within the Executive Branch, the President issued the Proclamation and imposed immigration restrictions on nationals from those eight countries until they comply with the necessary security criteria.

The Ninth Circuit determined in part that the President did not provide sufficient findings to support the Proclamation. The Ninth Circuit incorrectly reached this ruling despite the President’s broad constitutional and statutory authority to suspend or restrict the entry of aliens when he determines it is in our country’s best interest. This Presidential power was properly exercised here, as the President based his determination on extensive evidence gathered during a global review.

The Ninth Circuit’s decision, however, does not prevent the Proclamation from going into effect. The Supreme Court in December halted the Hawaii injunction pending the Court’s final review of the matter, and, as a result, the Ninth Circuit stayed the impact of its decision. Thus, despite the injunction and the Ninth Circuit’s ruling, the Proclamation remains in full effect for the time being and enhanced vetting will continue.

In the coming months, the Supreme Court will review the decision of the Ninth Circuit and consider the legal questions presented by the parties. These questions include the scope of the President’s authority to protect our national security and whether the Proclamation violates the Establishment Clause of the First Amendment to the Constitution, as claimed by the plaintiffs.

We are still awaiting a decision from the Fourth Circuit Court of Appeals regarding a Maryland federal court’s injunction against the Proclamation. The Fourth Circuit heard oral argument in that case in December. The Supreme Court’s decision to review the Ninth Circuit’s ruling, however, may cause the Fourth Circuit to not issue a decision and instead wait for the Supreme Court’s ruling regarding the Proclamation. The Supreme Court has also stopped the Maryland injunction from going into effect pending its review of the Proclamation.

Throughout the litigation against the National Security Executive Order and the Proclamation, the American Center for Law and Justice (ACLJ) has filed amicus (friend-of-the-court) briefs in support of the Trump Administration’s efforts to protect our country from the entry of foreign terrorists. In the coming weeks, the ACLJ will submit an amicus brief urging the Supreme Court to reverse the decision of the Ninth Circuit and allow the full implementation of the Proclamation to continue. The brief will be filed with the support of the ACLJ’s Committee to Defend Our National Security from Terror. Please join this important committee and brief.

We will continue to keep you posted about the litigation concerning the Proclamation, as well as about the other critical work of the ACLJ.