As previously reported, on January 27, 2017, President Donald Trump signed an Executive Order, which effectively banned travel to the United States by foreign nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen (seven countries). The filing of multiple federal lawsuits challenged the implementation of the Executive Order. On February 3, 2017, the United States District Court for the Western District of Washington issued a Temporary Restraining Order (TRO) prohibiting the Trump Administration from enforcing the above ban. The President appealed this decision to the United States Court of Appeals for the Ninth Circuit. On February 9, 2017, the Ninth Circuit refused to lift the TRO in a unanimous decision. This means that nationals of the seven countries may continue to travel to the United States, despite the Executive Order, at least until the case is heard on the merits for an issuance of a permanent injunction or until the case is reviewed by a higher court.
Following the ruling, President Trump made statements using social media, suggesting that he would perhaps appeal the Ninth Circuit’s decision to the Supreme Court of the United States (SCOTUS). Given that SCOTUS currently lacks its ninth member, there is a significant chance that such an appeal would result in a 4-4 deadlock, which would have the effect of affirming the ruling of the Ninth Circuit. President Trump is in the process of appointing a ninth member of SCOTUS, but this can take some time, possibly too long for the new member to participate in reviewing the Ninth Circuit’s decision.
A SCOTUS deadlock has the effect of affirming the lower court’s ruling and results in no legal precedent. For example, in 2015, a Federal District Court in Texas blocked the implementation of immigration initiatives that President Obama created. Those initiatives were established through the use of executive authority, similarly to the Executive Order signed by President Trump. President Obama appealed the District Court’s decision to the United States Court of Appeals for the Fifth Circuit, which declined to lift the stay on the implementation of the initiatives. President Obama then appealed to SCOTUS, which at that time was also lacking a ninth member. An equally divided SCOTUS affirmed the lower court’s decision not to lift the stay.
Due to the uncertainty associated with the implementation of the Executive Order and the likely expeditious timing of any subsequent appeals, we recommend for foreign nationals from the seven countries who are already in the United States not to travel abroad at this time. Individuals from the seven countries who are outside of the United States should consider expediting their travel plans to the United States at this time, while the Executive Order is still blocked.
Individuals affected by the Executive Order should remain cautious as the situation continues to be very fluid.