Posted by Ryan Suto on June 27, 2017 in Blog

On Monday, June 26 the Supreme Court stayed lower court injunctions to President Trump’s travel ban Executive Order (EO)—meaning the EO can now be enforced by the Government, though narrowed from the Administration’s original blanket ban. The decision was delivered per curiam: unsigned and written on behalf of the full Court. Importantly, the Court did not decide on whether EO itself is constitutional, though it agreed to hear arguments for that case during the first session of the October 2017 term.

The EO implements, in part, a 90-day ban to ensure, as the Court describes, “that dangerous individuals do not enter the United States while the Executive is working to establish “adequate standards… to prevent infiltration by foreign terrorists”…” The EO singles out Iran and five Arab countries (Libya, Somalia, Sudan, Syria and Yemen) as subject to the travel ban. This characterization may show how the Court will view the Government’s intent behind the EO when they review the case on the merits in the fall. 

While the original 90-day period expired on June 14, 2017, the Administration stated that the EO would go into effect for a full 90 day-period within 72 hours of a potential stay granted by the Court. In the decision, the Court states that it “fully expects” that the executive will be able to conclude its desired investigations and reports within that period of time. 

As such, the EO is allowed to take force for a full 90 days, only to those who “lack any bona fide relationship with a person or entity in the United States.” The Court provides some guidance on this caveat. For individual connections, a “close familial relationship” is required. For organizational ties, the relationship must be formal and documented. The Court warns against fraud, stating that immigration nonprofits cannot contact foreign nationals to add as clients simply to avoid application of the EO. 

These requirements apply equally to refugees: bona fide connections to US persons or organizations allow for exception from the EO. The Court does not provide a test or basis for determining whether organizational connections are created pursuant to bona fide relationships or fraudulently. This ambiguity may prove to be the source of further litigation during the coming months. 

The Court’s reasoning in arriving at this decision is risk averse, attempting to find a middle road between allowing either party complete victory. Citing case law, the Court wrote that it is necessary “to explore the relative harms” to the parties and “the public at large”. Those with bona fide connections have legitimate interests which outweigh the Government’s claims; the Court agreed with previous decisions with respect to their specific cases litigated—students returning to their education in the US and a man seeking the entry of family members all are excepted for the EO.

However, the Court felt that the injunctions of the lower courts were overly broad. The Court states that there are no individual burdens on Americans if those with no connections to the country are barred entry, and thus will not out-weigh the interests of the Government. In short, the interests of those with bona fide connections to the US out-weigh the Government’s claims, but the Government’s claims out-weigh the interests of those with no bona fide connections to the US. 

Because the Court granted stay without ruling on the merits of the case—that is, whether the EO itself is constitutional—there is no discussion of the validity of the Government’s national security claims in this decision, nor a discussion as to whether the EO unconstitutionally targeted Muslim-majority countries. Regrettably, the Court does not consider the interests, safety, or historically bleak state of immigrants and refugees who may wish to enter the US, either, nor does the decision mention international legal obligations toward asylum seekers.

The implementation of the EO, now with the blessing of the US Supreme Court, will signal to Iranians and citizens of the five Arab countries, all predominantly Muslim, that they are specifically subject to increased scrutiny without a legal investigation into the justification for such discrimination. The chilling effect of requiring greater burdens for citizens of these six countries than other foreign nationals endangers both the lives of hopeful refugees and our moral stature in the Arab world and the international community more broadly. America should remain a country which welcomes tourists, refugees, asylum seekers, and immigrants of all religions and nationalities who seek to find a better life on her shores.

What this means:

  • Nationals from Libya, Somalia, Sudan, Syria, Yemen, and Iran will not be admitted into the US through the end of September 2017 unless they can show a “bona fide relationship” with a US person or organization.
  • The Trump Administration will review internal and country-specific security and vetting processes regarding the above six countries.
  • The US Supreme Court will hear arguments as to whether the Executive Order is constitutional in early October 2017.