Office of the Solicitor General at the U.S. Department of Justice in Washington, D.C. Credit: Mike Scarcella/ NLJ

U.S. Solicitor General Noel Francisco filed the government's opening brief Wednesday in the U.S. Supreme Court in what may be the final battle over the Trump administration's ban on the entry into the United States of foreign nationals from predominantly Muslim nations.

Solicitor General Noel Francisco. Credit: Diego M. Radzinschi/ The National Law Journal

The so-called travel ban, now in its third iteration, restricts the entry of certain nationals from eight countries that pose national security risks, according to the administration. President Donald Trump issued the travel proclamation on Sept. 24. The targeted countries are Iran, Chad, Libya, Syria, Yemen, Somalia, North Korea and Venezuela.

The state of Hawaii, three individuals and the Muslim Association of Hawaii challenged the entry restrictions, except for nationals of North Korea and Venezuela. A federal district court issued a preliminary, global injunction after finding that the travel ban violated the Immigration and Nationality Act. The U.S. Supreme Court issued a stay of that injunction pending proceedings on appeal and in the high court. The president's ban is in full effect.

The justices will hear arguments in Trump v. Hawaii on April 25, the last argument day of the term. Hogan Lovells partner Neal Katyal represents the Hawaii challengers.

The case poses four questions for the high court: Is the challenge to the ban justiciable? Is the ban a lawful exercise of the president's authority to suspend entry of aliens? Does the ban violate the Constitution's establishment clause? Is the global injunction impermissibly overbroad?

Here is a quick look at the U.S. government's main arguments:

Nothing to see: The travel ban is not reviewable. “It is a fundamental separation-of-powers principle, long recognized by this court and Congress in the INA, that the political branches' decisions to exclude aliens abroad generally are not judicially reviewable,” the DOJ brief said. “That principle bars any review of respondents' statutory claims. respondents have also invoked the establishment clause, but they assert no cognizable violation of their own rights under that clause.”

What Trump said? Don't listen to that. “Impugning the official objective of a formal national-security and foreign-policy judgment of the president based on campaign-trail statements is inappropriate and fraught with intractable difficulties.”

The brief added, “It also thrusts 'ill equipped' courts into the untenable position of evaluating the 'adequacy and 'authenticity' of the executive's foreign-affairs and national-security judgments. And it invites impermissible intrusion on privileged internal executive branch deliberations, and potential litigant-driven discovery that would disrupt the president's execution of the laws. This court should reject a rule that invites such probing of the chief executive's supposed subjective views.”

DOJ: Down with global injunctions! “The lower courts' decisions in this litigation and in IRAP repeatedly upholding global injunctive relief against the president's proclamation and the executive orders that preceded it reflect a disturbing recent trend. Lower courts increasingly grant categorical injunctive relief barring enforcement of federal policies everywhere at the behest of individual litigants,” the DOJ said in its brief.

The DOJ lawyers continued: “Such an order by a single district court enjoining a federal policy everywhere frequently brings judicial review in all other fora to a halt and deprives other courts, including this court, of differing perspectives on important questions. Permitting such global injunctions also undercuts the primary mechanism Congress has authorized to permit broader relief: class actions.”

The brief concluded with this line: “This court should reject that deeply misguided practice and reiterate that injunctions should be tailored to redress the plaintiffs' own cognizable, irreparable harms.”

The DOJ's bottomline: Trump's travel ban has “facially legitimate purposes.” “The proclamation is explicitly premised on facially legitimate purposes: protecting national security and the national interest by preventing entry of persons about whom the United States lacks sufficient information to assess the risk they pose, and furthering foreign policy by encouraging other nations to improve their practices,” DOJ lawyers wrote.

“The proclamation's 'text, legislative history, and implementation' all confirm that its official objective' is religion-neutral,” DOJ's legal team continued. “The multi-agency review that produced the proclamation and its tailored entry restrictions dispel any contention that it is infused with religious animus.”

 

The Justice Department's brief is posted below: