Sunday, June 4, 2017
by Martha Davis, Northeastern University School of Law
By now, most US legal mavens will know that the Supreme Court is considering the US government's petition for certiorari in cases from the 4th and 9th circuit courts of appeals addressing the Executive Order known as the travel ban. The 4th circuit affirmed a lower court's injunction staying implementation of the Administration's travel ban; the 9th circuit case is still awaiting decision by that court of appeals. Briefing before the Supreme Court is ongoing, with papers opposing the Court's review due on June 12. Four justices' votes are needed to grant the review.
As challenges to the ban have moved through the courts around the country, much of the focus has been on whether there is sufficient evidence of discriminatory intent to find that the purpose of the revised travel ban is indeed to bar certain religious and ethnic groups. President Trump's tweets as a candidate and while in office have been key to that inquiry. And the offensive tweets continued this past weekend in the wake of the most recent London attacks.
However, as the travel ban litigation edges toward the Supreme Court, it's important to remember that the President's discriminatory intent is not the only issue. Earlier this year, Stanford Law Professor James Cavallaro and law student Rebecca Mears co-authored an op-ed in the NY Daily News reminding readers about the relevant provisions of the Refugee Convention and the United States' obligations under the treaty. Steve Elzie, a lecturer at USC law school, has posted a more detailed outline of an argument invoking the Youngstown factors to analyze presidential power in this area in light of Congress's ratification of the Refugee Convention and its implementation of the Convention through the Refugee Act. As Elzie points out, in the past, the Court has been wary of extending executive power even in the face of apparent Congressional inaction; in Medellin v. Texas, for example, five Justices, led by Chief Justice Roberts, disallowed the President's efforts to implement the nation's Vienna Convention obligations through Executive Order when Congress had not taken action to execute on the treaty through domestic implementation. In this case, then, in an instance where Congress has taken affirmative acts to implement US obligations to participate in the international refugee agreement, the President's power in the area would seem to be at its lowest ebb.
A group of international law scholars have already been filing an amicus brief in a number of the pending travel ban cases making the affirmative argument that the Executive Order violates human rights norms embodied in the Universal Declaration of Human Rights and other human rights documents. As the travel ban cases proceed, it will be important to more fully develop the argument arising from US international and domestic obligations under the Refugee Convention.