In this Learn About Law podcast & videoblog, attorney Kevin O'Flaherty explains the court's decision to lift the injunction on the travel ban and what was changed in the newest presidential order.
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On June 26, 2017, the Supreme Courtagreed to hear oral arguments over President Trump’s revised travel ban. Oral arguments will be held in the session that begins in October of2017.  In the meantime, the Supreme Court has partially lifted the lowercourts’ preliminary injunctions that had prevented the travel ban from goinginto effect.  

‍Trump issued the initial travel ban as an executive order whichprevented 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 preventingthis initial ban from going into effect.  

On June 26, 2017, the Supreme Courtagreed to hear oral arguments over President Trump’s revised travel ban. Oral arguments will be held in the session that begins in October of2017.  In the meantime, the Supreme Court has partially lifted the lowercourts’ preliminary injunctions that had prevented the travel ban from goinginto effect.  

‍Trumpissued the initial travel ban as an executive order which prevented individualsfrom 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 preventingthis initial ban from going into effect.  

Ratherthan appealing the 9th Circuit’s decision to the Supreme Court of the United States, President Trumprevised and reissued the executive order to resolve some of the 9th Circuit’sstated reasons for blocking the initial travel ban.  The two primarychanges were (1) that Iraq was removed from theban; and (2) an exception to the ban was explicitly carved out for green cardholders and dual citizens.  

‍Asexpected, the revised ban was challenged in the federal district courts. In two separate cases, district courts in Hawaii and Maryland issued ordersgranting preliminary injunctions which prevented the ban from going into effectuntil the case is decided on the merits.  

‍TheCourts of Appeals for the 4th and 9th Circuits upheld the district courts’injunctions for different reasons.   The 4th Circuit Court of Appealsthought it likely that the travel ban was intended to discriminate based onreligion, and that it would therefore be likely to be held unconstitutional. The 9th Circuit found it likely that President Trump overstepped the authoritygranted to him by the Immigration and Nationality Act.  

‍TheSupreme Court, upon agreeing to hear these cases, consolidated the appeal fromthe 4th Circuit and the appeal from the 9th Circuit into one case and limitedthe scope of the lower court’s injunctions.  Its ruling lifts theinjunction for foreign nationals who lack a “bona fide relationship with anyperson or entity in the United States.”  The effect isto carve out an exception to the travel ban for individuals who do have a bonafide relationship with entities in the U.S.    

Thismeans that the travel ban will go into effect for foreign nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen:

  • do not havegreen cards and who are not dual citizens;
  • Who do not havefamily in the United States;
  • ​​Who have notbeen accepted to a U.S. university; and
  • Who do not have ajob with a U.S. company.  

‍Theexecutive order will likely go into effect within 72 hours of the ruling. It will last for 90 days with respect to travelers from the namedcountries and 120 days with respect to refugees.  

‍JusticeClarence Thomas authored an opinion stating that the injunction should havebeen lifted in full, arguing that the exception that the court carved out ofthe revised executive order left officials with the burden of determining whichforeign nationals have a “bona fide relationship” with entities in the U.S. 

This is not the final word on the subject.  Although the SupremeCourt has simply partially lifted a preliminary injunction that was to be ineffect during the pendency of the case, it has yet to rule on the merits of thecase.  However, because the court will not rule on the merits until afterthe 90 day duration of at least one portion of the travel ban, this rulingeffectively allows the travel ban to go into effect, subject to the Court’sexception for “bona fide relationships.”  Its final ruling on the matterwill have more of an effect on future executive orders than the order inquestion.

Posted 
November 16, 2020
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