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Supreme Court Partly Upholds, Partly Lifts, Stay On Muslim Travel Ban

Trump Muslim Ban

In a decision that essentially hands both the President Trump and those challenging his Muslim Travel Ban Executive Order a partial victory, the Supreme Court has partly upheld the stay on that order while allowing other parts of it to go into effect, and will hear oral argument on the ban early in the new term that begins in October:

WASHINGTON — The Supreme Court announced on Monday that it would decide whether President Trump’s revised travel ban was lawful, setting the stage for a major decision on the scope of presidential power.

Mr. Trump’s revised executive order, issued in March, limited travel from six mostly Muslim countries for 90 days and suspended the nation’s refugee program for 120 days. The time was needed, the order said, to address gaps in the government’s screening and vetting procedures.

Two federal appeals courts have blocked critical parts of the order.

The administration had asked that the lower court ruling be stayed while the case moved forward. The court granted part of that request in its unsigned opinion.

The justices, in effect, said that foreigners with ties or relationships in the United States would not be prohibited from entering the country. But, those applying for visas who had never been here, or had no family, business or other ties could be prohibited.

“We grant the government’s applications to stay the injunctions, to the extent the injunctions prevent enforcement of” Mr. Trump’s executive order, the ruling said, “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.”

The justices said the distinction should be easy to administer. “In practical terms, this means that” the executive order “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.”

Justice Clarence Thomas, joined by Justices Samuel A. Alito Jr. and Neil M. Gorsuch, dissented from part of the court’s opinion. They said they would have revived the travel ban in its entirety while the court considered the case.

“I fear that the court’s remedy will prove unworkable,” Justice Thomas wrote. “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.”

“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’ ” the executive order, Justice Thomas wrote, quoting from the majority opinion.

In an official White House statement, Mr. Trump hailed the court’s action as “a clear victory for our national security.”

“As president, I cannot allow people into our country who want to do us harm,” Mr. Trump said. “I want people who can love the United States and all of its citizens, and who will be hardworking and productive.”

Amy Howe comments on the Court’s ruling at SCOTUSBlog:

The lower courts had considered the hardships that the ban would create for the named plaintiffs in the case: two men with family members who want to come to the United States from the affected countries; and the state of Hawaii, whose state university had admitted students from those countries. But, the court explained today, the lower courts’ orders barring enforcement of the ban “reach much further than that,” because they also apply to people living overseas “who have no connection to the United States at all.” When those people are unable to come to the United States, the court reasoned, their constitutional rights are not violated – because they have no right to come to the United States – and their exclusion from the country does not harm anyone in the United States.

The justices therefore upheld the lower courts’ orders blocking enforcement of the ban with regard to the named plaintiffs and others like them – people who “have a credible claim” of a genuine relationship with someone or an institution in the United States. When that relationship is with an individual, the court made clear, it must be a close family member. And when the relationship is with an institution, the relationship must also be a genuine one, rather than one created just to get around the travel ban.

Justice Clarence Thomas filed a separate opinion, which was joined by Justices Samuel Alito and Neil Gorsuch. They would have allowed the government to reinstate the ban for all travelers from the six affected countries, regardless of any personal connection that those travelers might have with the United States. Thomas complained that today’s order could prove “unworkable,” requiring government officials to try to figure out whether would-be travelers have enough of an connection to the United States to come here, and could “invite a flood of litigation.”

What this effectively means is that the stay that was imposed by two Federal Judges in Hawaii and Maryland before it went into effect in March and upheld in rulings by the Fourth and Ninth Circuit Courts of Appeal in May and June respectively will remain in effect, but only for certain individuals. Those individuals include the Plaintiffs in each of the specific cases and those similarly situated, which essentially means anyone with what the Justices called a “bona fide” connection to the United States. This potentially includes people in the six nations covered by the travel ban that have family members legally in the United States, students seeking to travel to the United States to either continue or begin studies at a college, university, or graduate school, people who have accepted employment in the United States, or others who have some connection to the United States. Presumably, the stay will also apply to family members of those individuals seeking to travel with them. With respect to others seeking to travel to the United States, though, the Court has ruled that the ban may go into effect with respect to those persons. This ban applies to people from the six affected nations for pleasure or tourism and to people seeking refugee status, although it is somewhat unclear if the fact that the United States Government determines that a specific individual has a valid claim to refugee status means that they are covered by the stay that remains in effect, or if they would be likewise barred notwithstanding their refugee status. To the extent that anyone not covered by the stay pursuant to the Court’s ruling wishes to argue that they should be covered by the stay, they would presumably need to either file suit on their own or seek guidance from one of the two Judges who entered the original travel bans. That ruling, of course, would also be subject to appeal to both the applicable Circuit Court of Appeal and the Supreme Court.

Additionally, as noted, the Court agreed to accept both the Fourth and the Ninth Circuit cases for review, and the Justices directed the Clerk of the Court to schedule the case for briefing by both parties so that it can be heard early in the term that begins on the first Monday in October. The Court has yet to release its argument calendar for the first month of the new term, but presumably, there is still space on the calendar for the case to be heard sometime during the first week that the Court is back in session. Given the fact that we haven’t even seen the briefing in this case yet, it’s obviously impossible to say where the Court might come down on the merits of the ban itself. That being said, the fact that the Court partly lifted the ban would suggest that it will at least ultimately rule that the ban is acceptable for those persons. For the people for whom the stay remains in effect, the fact that they have a connection to the United States may be sufficient for the Court to rule that it was improper for the President to attempt to ban their travel to the United States.

As with many Supreme Court decisions, the pundits were quick to begin to debate which side “won” in this decision, but I think it’s fair to say that this was a case where both sides walked away with a partial victory. In President Trump’s case, he can claim victory in the fact that he has scored at least a partial legal victory after a string of defeats that began with his original travel ban, which was stayed by a Federal Judge in Seattle and the Ninth Circuit Court of Appeals, and the revised ban, which was barred by two Federal Judges and by two separate Circuit Courts of Appeal. In the case of the opponents of the ban generally and the Plaintiffs in these cases specifically, they can claim a victory in the fact that the ban remains in place for a significant number of individuals. Additionally, they can claim victory in the fact that their original challenge to the travel ban resulted in revisions by the Trump Administration that provided that the ban would not apply to people who are legal permament residents of the United States or who already have visas to travel to the United States. In other words, it’s one of those classic legal cases where both sides are getting part of what they want. In the end, neither side may be entirely happy with the outcome but that’s often how the law works out.

Here’s the Court’s opinion and ruling:

Trump Et Al v. IRAP Et Al by Doug Mataconis on Scribd

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. KM says:

    “My number one responsibility as Commander in Chief is to keep the American people safe. Today’s ruling allows me to use an important tool for protecting our Nation’s homeland. I am also particularly gratified that the Supreme Court’s decision was 9-0.”

    This idiot is declaring a 9-0 “clear victory” out of “yeah, we’ll listen to the case”. He issued that on an official statement like this is a done deal. Trumpkins are going nuts proclaiming victory for their Overlord and decrying the lower courts as loser liberals they totally pwned…. all without understanding the damn case hasn’t been heard yet.

    I am running out of tears to weep for a once great nation.

    Like or Dislike: Thumb up 13 Thumb down 3

  2. MBunge says:

    I don’t see how anyone can begrudge Trump doing a victory lap on this after the media bellowed that the original rulings were such overwhelming repudiations of Trump that the entire issue was completely settled and no one could possibly continue to argue the point

    Wait, what am I thinking?

    Mike

    Hot debate. What do you think? Thumb up 5 Thumb down 17

  3. Daryl's other brother Darryl says:

    This ban wouldn’t have prevented a single terror incident here in the US since 2001.
    So, good for Dementia Donnie. Now when something he happens he can only blame himself. Right?

    Like or Dislike: Thumb up 8 Thumb down 2

  4. @KM:

    To be fair, claming victory is exactly what any other politician would’ve done.

    Like or Dislike: Thumb up 7 Thumb down 1

  5. michael reynolds says:

    I’m not surprised. I’ve always thought that any POTUS had the power to do this, and had the baboon not repeatedly gone off on anti-Muslim rants I suspect lower courts would have agreed.

    It’s a stupid choice of countries. It’s obviously religious bigotry. It will make things that much harder on US forces abroad. But I don’t think in the end it’s unconstitutional.

    Like or Dislike: Thumb up 11 Thumb down 2

  6. KM says:

    @Doug Mataconis:
    I’m not begrudging him calling it a victory but rather *what* he’s declaring as a victory. It’s verging on fake news to act like the case has already been litigated in your unanimous favor when really they just all agreed to let you in the front door rather then slam it in your face. He scored an appeal, not a touchdown.

    Like or Dislike: Thumb up 4 Thumb down 0

  7. Mikey says:

    @MBunge: Yeah, I actually agree with you on this to an extent. Of course he’s going to proclaim victory, and it is, of a sort (SCOTUS didn’t just kick the ban over completely).

    The additional puffery is just Trump being Trump.

    Like or Dislike: Thumb up 2 Thumb down 0

  8. Daryl's other brother Darryl says:

    @Doug Mataconis:
    @KM:
    Say what you will about Dementia Donnies puffery…this ban is not serious counter-terrorism policy by any stretch of the imagination.
    Not a single person from the six targeted countries has committed a deadly terrorist attack in the US.
    Muslims accounted for about 0.33% all murders in America last year. That’s one third of one percent.
    The odds of being killed by an immigrant terrorist of any kind (not just a Muslim terrorist) are one in 3.6 million. For reference your odds of being struck by lightening this year are 1 in 960,000. Your odds of being struck by lightning twice in your lifetime are 1 in 9 million. How many of you are actually worried about being struck by lightening?
    So if the Mangolini wants to claim a win, let him. You and I are not one bit safer.

    Like or Dislike: Thumb up 2 Thumb down 1

  9. michael reynolds says:

    I think it’s useful to step back and look at the strategic landscape, not just the present tactical situation. A constant of war is that it comes with ups and downs, advances and retreats. The Left can look at this as a defeat, but it’s only a tactical one. Strategically we are in much better shape than I expected we’d be in at this point.

    You know when Hitler lost WW2? Not Barbarossa. Not D-Day. He lost in 1933 from a self-inflicted wound when Einstein, driven by rising anti-Semitism, left Germany for Princeton and brought all of physics with him. That’s when the US was set on the path to nuclear weapons.

    Our Einstein is named Mueller.

    I’m not saying ‘relax,’ but I am saying we are in a far better spot than I thought we’d be at this point. We can still manage to lose, we are Democrats after all, but it’s already all-but-impossible for Trump to win.

    Like or Dislike: Thumb up 6 Thumb down 2

  10. HarvardLaw92 says:

    @MBunge:

    Wait, what am I thinking?

    You aren’t. You’re concern trolling, and that has become your basic problem.

    Like or Dislike: Thumb up 12 Thumb down 2

  11. Gustopher says:

    Isn’t the case moot? It was a temporary ban while we got our extreme vetting in order. 90 days, 120 tops.

    Like or Dislike: Thumb up 3 Thumb down 0

  12. Joe says:

    I have not read the opinion, but the headlines tell me that the Supreme Court has taken a narrow view of standing (right to sue) and has reached the unremarkable conclusion that people with no current connection to the US don’t have Constitutional rights here to protect. I don’t think many would argue that point. I would call it a “clean up” matter in the scope of the injunction.

    At that point, @Gustopher is correct. By the time this comes up for a hearing on the merits, the terms of the Order should have run and the vetting review (whatever that is) should have been completed. In fact, that clock should have started when one of the appeals courts (the 9th, I think) lifted the injunction as it related to a review of the vetting procedures.

    I remain concerned that the Supremes want to review this, since there is no conflict in the circuits, but this almost meaningless narrowing of the injunction seems like the sort of thing an appellate judge would do to pimp a district judge. (We had a saying when I was a district court clerk: an appellate judge finding mistakes in the record is like a general who runs out of the woods after the battle to kill all the wounded.) It’s no more than a pat on the head of the administration.

    Like or Dislike: Thumb up 0 Thumb down 0

  13. Hal_10000 says:

    @michael reynolds:

    I’m not surprised. I’ve always thought that any POTUS had the power to do this, and had the baboon not repeatedly gone off on anti-Muslim rants I suspect lower courts would have agreed.

    Yeah, I’m sort of in that boat. The ban, in the words of Scalia, is stupid but constitutional. Foreign policy is one domain where the President has a lot of leeway. And I was a bit uncomfortable with the Courts using the President’s campaign speeches again him. That standard might have led to them, for example, striking down Obamacare because Obama said it was a mandate while campaigning.

    Like or Dislike: Thumb up 1 Thumb down 0

  14. Kylopod says:

    @Hal_10000:

    That standard might have led to them, for example, striking down Obamacare because Obama said it was a mandate while campaigning.

    Obama didn’t say it was a mandate while campaigning then call it something different while in office. He called it a mandate consistently. The only thing that changed is that he was against the mandate while running and he came to support it after he entered office. One judge actually did attempt to use this against him in 2011, by pointing to a statement by Candidate Obama that “if a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house.” As I pointed out at the time, however, the judge neglected to mention that Obama’s analogy was a caricature of the mandate (which isn’t imposed on people too poor to afford health insurance). In essence, the judge was engaging in legally meaningless rhetorical point-scoring against Obama from the bench.

    The argument against Trump’s travel ban is different. It brings up his campaign statements not to take pot shots at him for flip-flopping on the issue but to expose the motive and rationale behind what he’s trying to do now.

    Like or Dislike: Thumb up 1 Thumb down 0

  15. bill says:

    readers digest version- scotus can read.
    how embarrassing that the 9th just can’t get over themselves.

    Like or Dislike: Thumb up 1 Thumb down 4

  16. Bob@Younsgtown says:

    @Doug Mataconis:

    To be fair, claming victory is exactly what any other politician would’ve done.

    Don’t I recall that DT campaigned on NOT being a politician?

    Like or Dislike: Thumb up 1 Thumb down 0

  17. Bob@Younsgtown says:

    @Joe:

    ….lifted the injunction as it related to a review of the vetting procedures.

    The administration was enjoined from reviewing the vetting procedures ???

    Could you explain that further?

    Like or Dislike: Thumb up 0 Thumb down 0

  18. Joe says:

    @Bob@Younsgtown:

    It was a surprise to me, but it was reported that one of the Appeals Courts (the 9th Circuit, I think), lifted a part of the ban that purportedly enjoined the Administration from reviewing its vetting procedures. I don’t know why that would have been included in the original injunction other than an overly broad injunction enjoining the “whole” travel ban order. I don’t know more than that.

    Like or Dislike: Thumb up 0 Thumb down 0

  19. PD Shaw says:

    @Bob@Younsgtown: The Hawaiin judge’s injunction covered the portion of the executive order that directed executive officers to consider and propose improvements to visa- and refugee-processing procedures. This relief wasn’t requested by the plaintiffs, and the judge refused to clarify or narrow this portion of the order when asked by the government. On June 12th the Ninth Circuit affirmed the injunction, but struck this portion of it as error to preclude internal policy review.

    Like or Dislike: Thumb up 1 Thumb down 0