The Supreme Court granted President Trump what amounts to a crucial, although partial, stay of lesser court rulings on the Administration’s Travel Ban. The ruling was unanimous at 9-0. I have previously written on the Travel Ban, and, like many, am unsurprised at the ruling. The court will take up the case in October when it reconvenes – maybe.
You can find the full ruling by the Supreme Court here.
But first, it’s worth recalling exactly what the Travel Ban was attempting to accomplish. The second Executive Order’s Travel Ban contains four significant pronouncements:
- Directs the Secretary of Homeland Security to conduct a global review to determine whether foreign governments provide adequate information about nationals applying for United States visas.
- Directs that entry of nationals from six countries – Iran, Libya, Somalia, Sudan, Syria, and Yemen – be suspended for 90 days from the effective date of the order.
- Suspends the U.S. Refugee Admissions Program (USRAP) for 120 days following its effective date.
- Citing the President’s determination that “the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States,” the order suspends any entries in excess of that number for fiscal 2017.
Iran is currently considered to be the foremost state sponsor of terrorism by the U.S. State Department – a position held for several years. Iran, Sudan and Syria are the three nations listed as State Sponsors of Terrorism by the U.S. State Department. Libya, Somalia, Sudan, Syria and Yemen are all effectively failed states, whereby verification of an individual’s status is effectively impossible.
The Supreme Court ruled the Travel Ban was allowed to go forward for those individuals without known and verifiable ties to people or institutions within the United States:
“The injunctions remain in place only with respect to parties similarly situated to Doe, Dr. Elshikh, and Hawaii. In practical terms, this means that §2(c) may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of EO–2.“
The Supreme Court also directly addressed the Hawaii Court ruling that extended beyond Section 2(c) of the second Executive Order and into Refugee Status claims contained within Section 6(a):
“But when it comes to refugees who lack any such connection to the United States, for the reasons we have set out, the balance tips in favor of the Government’s compelling need to provide for the Nation’s security. See supra, at 9–11; Haig v. Agee, 453 U. S. 280, 307 (1981). The Government’s application to stay the injunction with respect to §§6(a) and (b) is accordingly granted in part. Section 6(a) may not be enforced against an individual seeking admission as a refugee who can credibly claim a bona fide relationship with a person or entity in the United States. Nor may §6(b); that is, such a person may not be excluded pursuant to §6(b), even if the 50,000-person cap has been reached or exceeded. As applied to all other individuals, the provisions may take effect.”
The Supreme Court then attempted to define to whom the ban would and would not apply:
“The facts of these cases illustrate the sort of relationship that qualifies. For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.”
Judges Thomas, Alito and Gorsuch noted they would have supported a full implementation of the Travel Ban:
“JUSTICE THOMAS, with whom JUSTICE ALITO and JUSTICE GORSUCH join, concurring in part and dissenting in part. I agree with the Court that the preliminary injunctions entered in these cases should be stayed, although I would stay them in full.”
The three Justices also note problems with defining to whom the ban would and would not apply – and overtly rebuke the lesser court rulings:
“I fear that the Court’s remedy will prove unworkable. Today’s compromise will burden executive officials with the task of deciding—on peril of contempt— whether individuals from the six affected nations who wish to enter the United States have a sufficient connection to a person or entity in this country. See ante, at 11–12. The compromise also will invite a flood of litigation until this case is finally resolved on the merits, as parties and courts struggle to determine what exactly constitutes a “bona fide relationship,” who precisely has a “credible claim” to that relationship, and whether the claimed relationship was formed “simply to avoid §2(c)” of Executive Order No. 13780, ante, at 11, 12. And litigation of the factual and legal issues that are likely to arise will presumably be directed to the two District Courts whose initial orders in these cases this Court has now- unanimously—found sufficiently questionable to be stayed as to the vast majority of the people potentially affected.”
Lastly, the Supreme Court highlights the 90-day nature of the ban, calling into question whether any actual ruling will be needed when the Court reconvenes in October:
“In addition to the issues identified in the petitions, the parties are directed to address the following question: “Whether the challenges to §2(c) became moot on June 14, 2017.””
As I understand this last portion, unless the Trump Administration extends the Travel Ban – or reissues one – the 90-day Travel Ban will have naturally run its course by the time the Supreme Court reconvenes in October.
The Supreme Court may have no reason to revisit the Travel Ban at all.
To be clear, this unanimous ruling is a major victory for President Trump.
Yes, there will be significant legal problems in determining exactly to whom the Travel Ban does – and does not – apply. Justices Thomas, Alito and Gorsuch were correct in their concerns regarding the compromise of a partial stay.
But today’s ruling re-establishes two absolutely crucial and critical points.
- The Executive Branch has primary Constitutional Authority when it comes to matters of National Security and Immigration.
- As a nation we have national boundaries – and the right to maintain them.
The Supreme Court:
“At the same time, the Government’s interest in enforcing §2(c), and the Executive’s authority to do so, are undoubtedly at their peak when there is no tie between the foreign national and the United States… The interest in preserving national security is “an urgent objective of the highest order.” Holder v. Humanitarian Law Project, 561 U. S. 1, 28 (2010). To prevent the Government from pursuing that objective by enforcing §2(c) against foreign nationals unconnected to the United States would appreciably injure its interests, without alleviating obvious hardship to anyone else.”
“But when it comes to refugees who lack any such connection to the United States, for the reasons we have set out, the balance tips in favor of the Government’s compelling need to provide for the Nation’s security.”
Although expected, this was a huge win for President Trump – one that goes beyond the actual Travel Ban itself. The unanimous ruling by the Supreme Court comprised a major rebuke to the activist lesser courts – and the Left.
It also reaffirmed and re-established the Constitutional Authority of the Executive Branch.
For those who are curious, I have previously written on the oft-reversed lesser courts – specifically, Reversing the 9th Circuit Court of Appeals.
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