On June 26, 2017, the Supreme Court agreed to hear oral arguments over President Trump’s revised travel ban. Oral arguments will be held in the session that begins in October of 2017. In the meantime, the Supreme Court has partially lifted the lower courts’ preliminary injunctions that had prevented the travel ban from going into effect.
Trump issued the initial travel ban as an executive order which prevented individuals from Iran, Libya, Somalia, Sudan, Syria, Yemen and Iraq from entering the United States for 90 days. The executive order also prevented refugees from entering the U.S. for 120 days. The 9th Circuit Court of Appeals upheld a lower court’s ruling preventing this initial ban from going into effect.
Rather than appealing the 9th Circuit’s decision to the Supreme Court of the United States, President Trump revised and reissued the executive order to resolve some of the 9th Circuit’s stated reasons for blocking the initial travel ban. The two primary changes were (1) that Iraq was removed from the ban; and (2) an exception to the ban was explicitly carved out for green card holders and dual citizens.
As expected, the revised ban was challenged in the federal district courts. In two separate cases, district courts in Hawaii and Maryland issued orders granting preliminary injunctions which prevented the ban from going into effect until the case is decided on the merits.
The Courts of Appeals for the 4th and 9th Circuits upheld the district courts’ injunctions for different reasons. The 4th Circuit Court of Appeals thought it likely that the travel ban was intended to discriminate based on religion, and that it would therefore be likely to be held unconstitutional. The 9th Circuit found it likely that President Trump overstepped the authority granted to him by the Immigration and Nationality Act.
The Supreme Court, upon agreeing to hear these cases, consolidated the appeal from the 4th Circuit and the appeal from the 9th Circuit into one case and limited the scope of the lower court’s injunctions. Its ruling lifts the injunction for foreign nationals who lack a “bona fide relationship with any person or entity in the United States.” The effect is to carve out an exception to the travel ban for individuals who do have a bona fide relationship with entities in the U.S.
This means that the travel ban will go into effect for foreign nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen:
The executive order will likely go into effect within 72 hours of the ruling. It will last for 90 days with respect to travelers from the named countries and 120 days with respect to refugees.
Justice Clarence Thomas authored an opinion stating that the injunction should have been lifted in full, arguing that the exception that the court carved out of the revised executive order left officials with the burden of determining which foreign nationals have a “bona fide relationship” with entities in the U.S.
This is not the final word on the subject. Although the Supreme Court has simply partially lifted a preliminary injunction that was to be in effect during the pendency of the case, it has yet to rule on the merits of the case. However, because the court will not rule on the merits until after the 90 day duration of at least one portion of the travel ban, this ruling effectively allows the travel ban to go into effect, subject to the Court’s exception for “bona fide relationships.” Its final ruling on the matter will have more of an effect on future executive orders than the order in question.
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