The U.S. Supreme Court will decide the constitutionality of the Trump administration’s Refugee and Visa Order, known as the Muslim ban, while allowing enforcement of part of the order.
The ban at issue is President Trump’s second effort to ban Muslims from countries he has proclaimed to be dangerous.
The first travel ban, released January 27, prompted a federal district court to issue a nationwide order blocking the ban. The U.S. Court of Appeals for the Ninth Circuit upheld the ruling, issuing a scorching opinion that called the Trump administration’s actions blatantly unconstitutional.
The administration in response to that opinion released an amended Muslim ban on March 6, prompting a fresh round of legal challenges. Two of those challenges landed on the Supreme Court’s steps.
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The challenges come from two cases: one originating in Maryland and the other in Hawaii. The district courts in both cases blocked enforcement of section 2(c) of Trump’s travel ban—the provision banning entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen—and in both cases, the federal appeals courts agreed.
In the Maryland case, International Refugee Assistance Project v. Trump, the Fourth Circuit Court of Appeals concluded that the primary purpose of section 2(c) was religious and in violation of the First Amendment because it was motivated principally by a desire to exclude Muslims from the United States, not by national security concerns.
In the Hawaii case, State of Hawaii v. Trump, a three-judge panel of the Ninth Circuit Court of Appeals blocked enforcement of section 2(c), ruling that portions of the executive order likely exceeded the president’s authority under the Immigration and Naturalization Act.
The Supreme Court’s response was a mixed bag, but largely favorable to the plaintiffs: The Roberts Court ruled that the injunctions in both cases were too broad. The Court limited their application to people who have a relationship with the United States but allowed enforcement of the ban as to foreign nationals with no ties to the country.
The Court ruled that the lower courts had improperly attempted to “balance the equities.”
In issuing a preliminary injunction, one of the steps a court must take is to balance the equities, legalese for examining the relative harms to both parties. In the travel ban cases, courts have been called to balance the harm that the United States and the executive might suffer against the harm suffered by the plaintiffs challenging the travel ban.
This balancing of the equities led the Fourth and Ninth Circuits to issue injunctions blocking enforcement of section 2(c) in its entirety.
But the Supreme Court found that the injunctions went too far.
The lower courts balanced the harm to the government against the harm to plaintiffs named in the lawsuits: the harm to a doctor in Hawaii whose Syrian wife could not enter the United States because of the ban, or to plaintiffs in Maryland who sought spousal immigration visas so their spouses could join them from overseas, or the harm to the state of Hawaii if section 2(c) prevented students from the designated nations who had been admitted to the University of Hawaii from entering the country, and found that plaintiffs’ hardships were “sufficiently weighty and immediate to outweigh the Government’s interest in enforcing § 2(c).”
But the Supreme Court ruled that the injunctions went too far in barring enforcement of § 2(c) with regard to foreign nationals abroad who have no connection to the United States at all, and granted the Trump administration’s request to stay enforcement of the injunction as applied to foreign nationals that have no bona fide relationship to a person or entity in the United States.
“The equities relied on by the lower courts do not balance the same way in that context,” the Supreme Court majority said in a per curiam opinion. “Denying entry to such a foreign national does not burden any American party by reason of that party’s relationship with the foreign national.”
The Court pointed out that national security is “an urgent objective of the highest order” and that “the Government’s interest in enforcing § 2(c) and the [e]xecutive’s authority to do so, are undoubtedly at their peak when there is no tie between the foreign national and the United States.”
In practical terms, this means that the government can enforce the travel ban against people who have no relationship to the United States, but not against the named challengers or people like them who, for example, have relatives who want to come to the United States or who are attending a U.S. university or have an offer of employment from an company in the country.
“For individuals, a close familial relationship is required,” the Court said. “As for entities, the relationships must be formal, documented, and formed in the ordinary course rather than for the purpose of evading” the executive order.
Justice Clarence Thomas dissented along with Justice Samuel Alito and newly-appointed Justice Neil Gorsuch, writing that he would have backed the Trump administration and stayed the injunctions in full. He wrote that the government made a strong showing that it is likely to succeed on the merits, another prerequisite for the issuance of a preliminary injunction.
“The [g]overnment has also established that failure to stay the injunctions will cause irreparable harm by interfering with its ‘compelling need to provide for the Nation’s security.’”
Thomas expressed concerns about the workability of the court’s remedy.
“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,” Thomas wrote.
Trump has issued statements on Twitter criticizing the judges who have sided against his efforts to ban foreign nationals from primarily Muslim countries.
“[W]e are EXTREME VETTING people coming into the U.S. in order to help keep our country safe. The courts are slow and political!,” Trump tweeted this month.
“That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!” Trump wrote in a tweet that would ultimately find its way in one of the Ninth Circuit rulings blocking the ban.
It is unclear whether Trump’s Twitter eruptions or similar statements by his advisers will factor into the Supreme Court’s decision regarding the constitutionality of the bans, as they have in lower court rulings.
The Trump administration will likely claim victory since the ruling allows portions of the ban to go into effect. But the Court’s decision could be seen as a victory for plaintiffs and other foreign nationals like them who have family, business, or school ties to the United States and who, if the Trump administration had its way, would have been banned from entering the country.
The Supreme Court will hear arguments on Trump’s travel ban in the fall.