The Supreme Court agreed Monday to let portions of President Donald Trump’s travel ban executive order take effect, a partial victory for the White House that could come as a relief after a string of lower court defeats.
The court will hear arguments on the ban — which denied visas to citizens of six Muslim-majority countries and paused admission of refugees from across the globe — and, in the meantime, the justices limited the directive’s impact on foreigners with clear ties to individuals, businesses or organizations in the United States.
The high court’s action Monday means parts of the order Trump reissued in March will go into effect until the justices decide on the legality of the measure. The justices called for arguments on the travel ban during the court’s first session in October.
Trump quickly claimed victory because the Supreme Court order appears to recognize the president’s broad authority to limit travel to the United States by those with no direct ties here.
“Today’s unanimous Supreme Court decision is a clear victory for our national security. It allows the travel suspension for the six terror-prone countries and the refugee suspension to become largely effective,” the president said in a statement.
However, travel ban opponents noted that many visa applicants have U.S. ties, and State Department officials will have to process and grant requests for visas for those travelers just as they do now, after lower court injunctions hindered Trump’s order.
Immigrant advocates said few people in the six countries affected by the visa ban seek to enter the United States purely for tourism, with no relationship to some American person or entity. But the order could be tougher on refugees, who are less likely to have connections to the United States.
“As you can imagine, they’re not giving a lot of tourism visas to Yemeni and Somali nationals to begin with,” said Becca Heller of the International Refugee Assistance Project.
Trump billed his travel ban, which was rewritten to make it easier to defend than an initial, more sweeping version in January, as a common-sense precaution against terrorism. But critics contend it’s a thinly veiled version of the “Muslim ban” Trump promoted during his campaign for the White House.
The Supreme Court’s unsigned order issued Monday noted the court rulings reaching that conclusion but expressed no view on it.
Three justices — Clarence Thomas, Samuel Alito and Neil Gorsuch — said they would have allowed the entirety of Trump’s travel ban to take effect while the court mulls the case.
Instead, the court’s order after nearly five months of legal uncertainty lets Trump’s directive go forward with significant limitations in place. For example, people admitted to U.S. universities, offered work by American businesses or with other formal connections may be exempt from Trump’s new visa restrictions, the justices concluded.
“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 … clearly has such a relationship,” the high court order said.
With the backing of Alito and Gorsuch, Thomas said he doubted those distinctions will hold up.
“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, adding that it also would invite more litigation.
It’s not clear what action from Trump would be needed for parts of the directive to take effect.
Trump’s March directive said the visa ban would last 90 days and the refugee halt would run for 120 days. After the lower court injunctions, Trump issued a memo saying that no blocked part of his directive takes effect until “72 hours after all applicable injunctions are lifted or stayed with respect to that provision.”
That may mean Trump needs to issue another formal notice before the newly allowed visa or refugee bans kick in.
“To avoid any confusion, the presidential memorandum issued last week will likely be amended to include a discussion of the waiver and reissued,” said Paul Virtue, a partner at law firm MayerBrown and former chief counsel of the Immigration and Naturalization Service.
Trump issued his first travel ban executive order in January, just a week after his inauguration. The directive triggered confusion and chaos — as well as protests — at airports across the country as immigration officials, travelers and airlines struggled to figure out whether it was intended to ban all travelers from seven majority-Muslim countries and whether it applied to green-card holders.
Several judges quickly limited the impact of the original order. Within days, a Seattle-based judge acting on a suit brought by the states of Washington and Minnesota blocked several key aspects of the original directive.
The 9th Circuit Court of Appeals turned down the Trump administration’s initial request to lift the injunction. At that point, the Justice Department could have taken the issue to the Supreme Court on an emergency basis. Instead, the administration decided to drop its appeal while officials redrafted Trump’s order.
Trump has since said the decision to reformulate the order was a mistake.
“The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.,” he wrote on Twitter earlier this month.
But trying to take the matter to the justices in February would have meant an almost certain loss for the president. At the time, the high court was split evenly between Democratic and Republican appointees. (Trump’s Supreme Court pick, Neil Gorsuch, was not confirmed until April.)
The rewritten order Trump signed March 6 removed Iraq from the list of seven countries targeted for a 90-day suspension of visa issuance, leaving Iran, Libya, Somalia, Sudan, Syria and Yemen. The 120-day halt to refugee admissions remained essentially the same, but a provision that appeared to privilege Christians from Muslim-majority countries was deleted.
The most significant change in the rewritten order was language explicitly declaring that existing visa and green-card holders were exempt and not affected by the travel ban. That put some of those with the strongest ties to the United States — and, therefore, the strongest legal claims to press in court — beyond the reach of the directive.
Despite those changes, Trump’s revised travel ban order was blocked by federal judges in Hawaii and Maryland before it was set to take effect. Both judges said the measure amounted to unconstitutional religious discrimination against Muslims because it appeared to be a product of Trump’s campaign-trail pledge to ban Muslims from the United States.
The Trump administration’s appeals of those injunctions were rejected in recent weeks by the Richmond, Virginia-based 4th Circuit and the San Francisco-based 9th Circuit.
After an unusual full-bench hearing, the 4th Circuit last month ruled 10-3 that the revised travel ban order violated the First Amendment’s guarantee against government denigration of a religion. The judges essentially split along partisan lines, with nine Democratic appointees ruling against the travel ban and three Republican appointees voting to lift the injunction. (One judge who voted against the Trump directive was actually nominated by both President Bill Clinton and President George W. Bush.)
Earlier this month, a three-judge 9th Circuit panel also ruled against the revised executive order, but it did so on the narrower ground that Trump hadn’t met the standards Congress set out in law to take the sorts of steps he did. The three judges — all Clinton appointees — left in place the core of the Hawaii judge’s injunction barring the administration from implementing the six-country visa ban and the halt to refugee admissions.
The 9th Circuit did rein in the injunction issued out of Hawaii, giving the Trump administration the go-ahead to move forward with vetting studies and other internal reviews that are required under the presidential directive.
Trump’s more informal public statements about the litigation, often delivered through Twitter, have frequently complicated or undermined the arguments elite Justice Department attorneys were mustering in court to defend the travel ban.
Trump’s reference last month to the revised executive order as a “watered down, politically correct” version of the first undercut the federal government’s position that the revised directive was essentially independent of the first one and lacked any taint of religious discrimination that some saw in the earlier order.
The president’s statement also seemed to bolster critics’ arguments that the March order was indeed a version of the Muslim ban he promised during the campaign.
And Trump’s repeated use of the phrase “travel ban” to describe his orders seems to be at tension with Justice Department arguments that the actions did not amount to a sea change in government policy but only a “temporary pause” in travel while officials shore up the process for checking the backgrounds of those seeking to come to the United States.
Powered by WPeMatico