SUMMARY: In a bombshell immigration decision, the U.S. Supreme Court has partially lifted the majority of the injunction on President Trump’s travel ban, finding that the President can ban foreign nationals and refugees who are without a “credible claim to a bona fide relationship with a person or entity within the United States.” The Court also ordered the matter to be scheduled for argument in the coming fall term.
DECISION: Per curiam: stay of injunction granted in part and denied in part; certiorari granted on both cases. There was a concurrence by Justice Thomas, joined by Justices Alito and Gorsuch.
Per curiam (unsigned opinion of the Court).
- The case involved two separate lawsuits: one by the International Refugee Assistance Project (IRAP) and one by the state of Hawaii, both against President Trump’s travel ban.
- In January 2017, President Trump signed an executive order (EO-1) which suspended, for 90 days, entry of foreign nationals from seven countries identified as presenting heightened terrorism risks. It also suspended current refugee policy for 120 days and ordered a reduction in the number admitted.
- Just one week later, EO-1 was enjoined from enforcement by a federal court. Ultimately, EO-1 was rescinded.
- In March 2017, President Trump signed another executive order (EO-2), this time limiting entry from six different nations. Like EO-1, EO-2 also suspended processing of refugee applications, and ordered that the nation would take in no more than 50,000 refugees in 2017. It further directed the Secretary of Homeland Security to review both visa policies and refugee policies. It had a stated effective date of March 16, 2017.
- IRAP and Hawaii challenged EO-2 as violating (1) the Establishment Clause of the First Amendment (because it is motivated by animus towards Islam); and (2) the Immigration and Nationalization Act.
- IRAP filed its suit in the District of Maryland. On March 16, 2017, the District of Maryland, relying on the Establishment Clause, entered a nationwide preliminary injunction barring the Government from enforcing EO-2 against any foreign national seeking entry to the United States. On May 25, 2017, a divided Fourth Circuit largely upheld this injunction, citing the establishment clause and also noting that President Trump’s campaign statements as evidence.
- Hawaii filed suit in the District of Hawaii. On March 29, 2017 the District of Hawaii, also relying on the Establishment Clause, entered a broader injunction than the District of Maryland, enjoining all of the EO-2 policies listed above. On June 12, 2017, a unanimous Ninth Circuit largely upheld this injunction, but unlike the Fourth Circuit, the Ninth Circuit relied on the Immigration and Nationalization Act, saying the President likely overstepped his authority under the act.
- IRAP also raised the issue of mootness to the Supreme Court, namely, because the portion of EO-2 banning certain foreign nationals was only effective for 90 days beginning March 16, 2017, and that the 90th day was June 14, 2017; however, that section EO-2, as noted above, had been enjoined from the first day.
- On June 14, 2017, President Trump issued a memorandum to executive branch officials, stating that the effective date of each enjoined provision of EO–2 was to be the date on which the injunctions “are lifted or stayed with respect to that provision.”
- The Government petitioned for certiorari and for a stay of the injunctions in both cases.
- “To begin, we grant both of the Government’s petitions for certiorari and consolidate the cases for argument.”
- “In addition to the issues identified in the petitions, the parties are directed to address the following question:'[w]hether the challenges to [the ban on foreign nationals] became moot on June 14,2017.'”
- The Court relieved the injunction as”to foreign nationals who lack any bona fide relationship with a person or entity in the United States.” To those, however, with a “credible claim” of a “bona fide relationship with a person or entity in the United States”, the travel bans remain enjoined.
- The Court noted that “a preliminary injunction is an exercise of discretion and judgment” and a court “may mold its decree to meet the exigencies of the particular case.” It requires a “balancing of equities.”
- The Court upheld the lower court injunction for “people or entities in the United States who have relationships with foreign nationals abroad.” This was because such people/entities’ “rights might be affected if those foreign nationals were excluded.” The Court struck down those injunctions that barred enforcement “against foreign nationals abroad who have no connection to the United States at all” because such enforcement did not burden any American-based party.
- “[T]he Government’s interest in enforcing [the ban on foreign nationals], and the Executive’s authority to do so, are undoubtedly at their peak when there is no tie between the foreign national and the United States…To prevent the Government from pursuing that objective by enforcing [the ban on foreign nationals] unconnected to the United States would appreciably injure its interests, without alleviating obvious hardship to anyone else.”
- EO-2’s ban on foreign nationals “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of EO–2.” This division applies to refugees as well.
- The Court noted that a close familial relationship is required for an individual asserting a “credible claim of a bona fide relationship.” For an entity, the Court stated that “the relationship [with the foreign national] must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2.”
- The concurrence was very strong, arguing that the injunction should be stayed “in full”.
- The concurrence was critical of the per curiam’s decision to keep the injunctions in place for “an unidentified, unnamed group of foreign nationals abroad. No class has been certified, and neither party asks for the scope of relief that the Court today provides.”
- The concurrence also found the per curiam’s remedy “unworkable”, since it put the onus on the Government to decide whether an individual had sufficient connection to a person or entity in the U.S., inviting a “flood of litigation” to decide what a “credible claim to a bona fide relationship” means.
- The injunction is not lifted in toto. The travel ban is only in effect against foreign nationals and refugees “who lack any bona fide relationship with a person or entity in the United States.” The injunction is still in effect for people with a “credible claim” to such a “bona fide relationship.” What exactly a “credible claim” is, and what are the boundaries of a “bona fide relationship”, were left undefined.
- The Supreme Court added a new wrinkle to the case, asking the parties to consider the question of ““[w]hether the challenges to [the ban on foreign nationals] became moot on June 14,2017.” This potentially could be used by the Supreme Court as a way to avoid deciding the matter directly, instead dismissing the matter as moot.
- The Court was very clear that attempts to “get around” the ruling by faking a “bona fide relationship” will be looked upon harshly. The Court specifically singled out as verboten those non-profits that might attempt to fake a foreigner’s bona fide relationship. It remains to be seen if such malfeasance occurs and what punishments courts will exact for such malfeasance.
- The Court’s divide in either upholding or staying the injunctions was whether an American party was injured. Thus it seems similar to a standing argument.
- The concurrence hints that the Supreme Court is leaning towards upholding the travel ban: “the Court’s implicit conclusion that the Government has made a strong showing that it is likely to succeed on the merits—that is, that the judgments below will be reversed.”
- The concurrence also notes that the Court’s decision will likely lead to a lot of litigation between now and the final decision.
- The Court studiously avoids discussing the merits of the Establishment Clause and Immigration and Naturalization Act arguments.