The Supreme Court delivered a win to President Trump on Monday, allowing his travel ban to take effect, albeit on a limited basis, before it hears a lawsuit against the policy this fall.
While lower courts had blocked the ban since February, the Supreme Court cited precedent to allow parts of it to take effect, stating that preserving national security is “an urgent objective of the highest order.”
“To prevent the government from pursuing that objective by enforcing [the ban] against foreign nationals unconnected to the United States would appreciably injure its interests without alleviating obvious hardship to anyone else,” the court said.Trump, who had predicted he would triumph at the Supreme Court, hailed the court’s decision as a “clear victory for our national security.”
“Today’s ruling allows me to use an important tool for protecting our nation’s homeland,” he said.
The travel ban can take effect in 72 hours and will block many travelers from six predominantly Muslim countries from entering the U.S. for 90 days. The countries affected are Iran, Libya, Somalia, Sudan, Syria and Yemen.
But rather than lifting the injunction against Trump’s policy wholesale, the justices crafted an exemption that allows nationals from those six countries to enter the U.S. if they have a “bona fide” relationship to a person or entity in the country.
In practice, that means that students and business travelers, as well as people with close family members, might be granted entry.
“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 [the ban],” the court said.
Enforcement of the policy will largely be left to the Trump administration.
Caroline Fredrickson, president of the liberal American Constitution Society, said it appears the justices were trying to give a little bit to both sides with their decision in the case, but may have created a recipe for disaster in doing so.
“With the short time frame and with this administration being a little less than competent, are we going to end up with the same situation before with hasty implementation and chaos?” she said.
Three justices on the court — Clarence Thomas, Samuel Alito and Neil Gorsuch, all considered members of the conservative wing — dissented in part from the court’s decision. They said they would have reinstated the full ban.
In his dissent, Thomas called the court’s remedy “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,” he said.
“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 ban].’ “
The 90-day travel ban is intended to allow the Department of Homeland Security (DHS) time to strengthen vetting procedures for foreign travelers, with the aim of keeping out terrorists and other people who might threaten U.S. security.
The DHS on Monday said it would provide “additional details” on enforcement of the travel policy after consulting with the State and Justice departments.
“The implementation of the Executive Order will be done professionally, with clear and sufficient public notice, particularly to potentially affected travelers, and in coordination with partners in the travel industry,” the DHS said.
In addition to allowing the travel ban to take effect, the Supreme Court on Monday lifted a block on Trump’s plan to suspend the entry of all refugees to the U.S. for 120 days. That policy also reduces the cap on the admission of refugees from 110,000 to 50,000 for the 2017 fiscal year.
Like the ban on nationals from the six countries, the court said refugees who have a bona fide relationship with a person or entity in the U.S. can be exempted from the ban.
“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,” the court said.
Trump said the court’s decision was 9-0, though the per curiam decision was unsigned, as is standard practice. Thomas said in his dissent that the court “has now unanimously found” the lower court rulings “sufficiently questionable,” but whether that signals all nine members of the court agreed is unclear.
At least five votes were needed to reinstate the ban in part, and at least four votes were needed to hear the government’s appeal.
Still, court watchers agreed that the justices delivered a measure of vindication to Trump after months of court losses that saw opponents assail the travel ban as discriminatory against Muslims.
“I think both sides can claim some victory,” said Carl Tobias, a Williams professor of law at the University of Richmond School of Law. “It’s not a clear win for the plaintiffs, but it may be better than it looks at first blush.”
Whether the court’s decision means Trump’s policy will ultimately be upheld by the court is hard to predict.
“You only have three [justices] who say the injunctions should all be lifted, so is it 6-3 on the merits?” Tobias asked. “It’s not clear where the justices might come out.”
Josh Blackman, a constitutional law professor at the South Texas College of Law in Houston and member of the conservative Federalist Society, said he’s comfortable calling the court’s decision a unanimous win for Trump.
“There’s no recorded dissent,” he said. “Justice [Sonia] Sotomayor is not afraid to dissent when she wants to. … If there were to be a dissent, there would be a dissent.”
Because the 90-day travel ban will expire before the court’s next term begins, Blackman said the court might ultimately decide to dismiss the case as moot and never hear Trump’s appeal.
“I think there’s the distinct chance this case is never argued,” he said. “If it is argued and dismissed as moot, the lower court decisions are vacated.”
Blackman called the court’s decision Monday a “sharp rebuke of the lower court ruling” that put the policy on hold.
In their rulings on the travel ban, the lower courts had grappled with Trump’s statements during the campaign about enacting a “temporary shutdown” on Muslims entering the United States.
The 4th U.S. Circuit Court of Appeals, which ruled against the ban, said Trump’s order couldn’t be separated from the apparent animus against Muslims that inspired it.
Fredrickson said if the court does hear arguments in the fall, the justices are likely to look at whether any bias against Muslims played a part in Trump’s order.
Tom Jawetz, vice president for immigration policy at the Center for American Progress, said it’s disappointing the court would allow part of a “malicious Muslim and refugee ban to go into effect.”
“No amount of polish can cover up the multiple, hate-filled statements that President Donald TrumpDonald TrumpCarter Page questioned in FBI Russia investigation: report Major progressive group rolls out first incumbent House endorsement Overnight Finance: CBO: 22M more uninsured with Senate ObamaCare bill | Trump gets green light for partial travel ban | GOP: ObamaCare taxes must go MORE and members of his administration have made as to the exclusionary and discriminatory underpinnings of the executive order,” he said.
John Malcolm, vice president for the Institute for Constitutional Government at the conservative Heritage Foundation, however, said he believes the court has “tipped its hand” and shown that it’s likely to uphold the president’s right to implement the immigration order.
“I think it’s important the court not second guess the president and Congress when it comes to immigration and national security issues and that they don’t second guess them based on tweets and campaign surrogates,” he said.