Supreme Court Allows Trump Travel Ban In Part
Benjamin R. Dierker, Social Policy Contributor
The 90-day travel halt issued by President Trump’s January Executive Order, which has faced multiple challenges in court, has been temporarily granted relief by the Supreme Court. This relief is in the form of a stay or a temporary delay of the injunction that the circuit courts ruled to prevent the government from enforcing the travel ban. The Executive Order restricts travel for foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen for 90 days, while the Secretary of State conducts a review of its visa and screening processes. It also places a 120-day freeze on acceptance of refugees and caps the acceptance at 50,000 refugees for the year.
The Executive Order faced challenges in both the Fourth Circuit and the Ninth Circuit Courts of Appeals. In both cases, the courts restricted the government’s ability to enforcement of the travel ban, citing the Establishment Clause of the U.S. Constitution in the Fourth Circuit, and the Immigration and Nationalities Act in the Ninth Circuit. The Supreme Court ordered Monday that it would grant certiorari and consolidate the cases, meaning the high court will accept the case and hear both cases together, issuing one ultimate ruling. The order indicates that the cases will be heard in the first session of the October 2017 term.
Before October, the travel ban will remain in a state of limbo. The Supreme Court has granted a stay on the nationwide injunction regarding foreign nationals in the six named countries who lack familial ties to the U.S. The stay means that the part of the EO that the circuit courts enjoined are temporarily free from the injunctions. The bottom line of order explains:
We now turn to the preliminary injunctions barring enforcement of the §2(c) entry suspension. We grant the Government’s applications to stay the injunctions, to the extent the injunctions prevent enforcement of §2(c) with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States. We leave the injunctions entered by the lower courts in place with respect to respondents and those similarly situated, as specified in this opinion.
Section 2(c) of the EO states:
(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening and vetting of foreign nationals, to ensure that adequate standards are established to prevent infiltration by foreign terrorists, and in light of the national security concerns referenced in section 1 of this order, I hereby proclaim, pursuant to sections 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), that the unrestricted entry into the United States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen would be detrimental to the interests of the United States. I therefore direct that the entry into the United States of nationals of those six countries be suspended for 90 days from the effective date of this order, subject to the limitations, waivers, and exceptions set forth in sections 3 and 12 of this order.
The Supreme Court has tentatively upheld the injunction on the travel ban as it relates to those who would be inequitably impacted by it. Citing the plaintiffs in Hawaii (the Ninth Circuit case) and John Doe (the Fourth Circuit case), the Supreme Court explained that the appeals courts properly extended the injunction of the order to cover the plaintiffs as well as anyone in similar situations who may sue because of the travel ban. However, the high court explains why it stayed part of the order, “But the injunctions reach much further than that: They also bar enforcement of §2(c) against foreign nationals abroad who have no connection to the United States at all.” This is where the EO travel ban is being allowed to go into effect. Foreign nationals from the six listed countries with no ties to the U.S. will be prevented for 90 days from receiving visas. Some fear that it opens the door to potentially endless litigation by foreigners claiming ties that are too tenuous to ordinarily grant them visas. The obvious safeguard against this would have been making no pronouncement on a stay or injunction to order and simply accepting the case for the October term.
In a concurrence, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch, agreed with the court in part and dissented in part. Thomas’s concurrence begins, “I agree with the Court that the preliminary injunctions entered in these cases should be stayed, although I would stay them in full.” This provides a clear forecast for the way these justices are expected to decide when the cases are heard in October.
Four votes from the court were required to hear the case on appeal, and a fifth vote was required to grant a stay on the injunction.
Read the full Supreme Court order here.
Read a detailed analysis of the Ninth Circuit ruling here.
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