Supreme Court Gives Force to Trump’s Travel Ban But He Can Vet Them For Diseases Too

Courthouse News Service) Giving force to pieces of President Donald Trump’s ban on Muslim travel in the United States, the Supreme Court took up the controversial case Monday as its last act before summer recess.

9th Circuit Upholds Injunction On Trump’s Second Travel Ban

Photo by bloomsberries (CC)

Consolidating twin challenges against the executive order, the high court noted that the injunctions put in place against Trump’s so-called travel ban prevented the government from initiating enforcement of any of the challenged provisions.

In demanding a stay of those injunctions, however, the government cited the likelihood of irreparable harm.

“Pointing to the descriptions of conditions in the six designated nations, the government argues that a 90-day pause on entry is necessary to prevent potentially dangerous individuals from entering the United States while the executive reviews the adequacy of information provided by foreign governments in connection with visa adjudications,” the unsigned opinion states. “Additionally, the government asserts, the temporary bar is needed to reduce the executive’s investigative burdens while this review proceeds.”

The six countries at issue are all Muslim-majority countries, Iran, Libya, Somalia, Sudan, Syria, and Yemen.

In addition to suspending U.S. entry by nationals from these countries for 90 days, the executive order suspends “decisions on applications for refugee status” and travel of refugees into the United States for 120 days.

Other provisions suspend any entries in excess of 50,000 refugees for fiscal year 2017, while also directing the chief of Homeland Security to determine whether foreign governments provide adequate information about nationals applying for U.S. visas.

Leading the challenge of the executive order are the state of Hawaii; Dr. Ismail Elshikh, an American citizen and imam whose Syrian mother-in-law is seeking entry to this country; and John Doe No. 1, a lawful permanent resident whose Iranian wife is seeking U.S. entry.

Though the Supreme Court kept the injunction in effect as it pertains to the challengers, it issued a partial stay that allows some of Trump’s travel-ban provisions to take effect.

Saying the lower courts’ injunctions went farther than necessary, the justices noted that they bar enforcement of the executive order “against foreign nationals abroad who have no connection to the United States at all.”

“Denying entry to such a foreign national does not burden any American party by reason of that party’s relationship with the foreign national,” the opinion states. “And the courts below did not conclude that exclusion in such circumstances would impose any legally relevant hardship on the foreign national himself. So whatever burdens may result from enforcement of §2(c) against a foreign national who lacks any connection to this country, they are, at a minimum, a good deal less concrete than the hardships identified by the courts below.”

The court agreed to keep the injunctions in place only with respect to the challengers themselves and those similarly situated.

“In practical terms, this means that §2(c) 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,” the ruling states. “All other foreign nationals are subject to the provisions of EO–2.”

As for the injunction pertaining to refugees, the court found the injunction on this point overbroad as well.

“An American individual or entity that has a bona fide relationship with a particular person seeking to enter the country as a refugee can legitimately claim concrete hardship if that person is excluded,” the opinion states. “As to these individuals and entities, we do not disturb the injunction. But when it comes to refugees who lack any such connection to the United States, for the reasons we have set out, the balance tips in favor of the government’s compelling need to provide for the nation’s security.”

Monday’s lead opinion is unsigned, but Justices Neil Gorsuch and Samuel Alito joined a partial dissent by Justice Clarence Thomas that calls for a more thorough stay.

“It would have been reasonable, perhaps, for the court to have left the injunctions in place only as to respondents themselves,” Thomas wrote. “But the court takes the additional step of keeping the injunctions in place with regard to 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. ‘Injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs’ in the case.”

Thomas predicts as well “that the court’s remedy will prove unworkable.”

“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,” he wrote. “The compromise also will invite a flood of litigation until this case is finally resolved on the merits, as parties and courts struggle to determine what exactly constitutes a ‘bona fide relationship,’ who precisely has a ‘credible claim’ to that relationship, and whether the claimed relationship was formed ‘simply to avoid §2(c)’of Executive Order No. 13780. And litigation of the factual and legal issues that are likely to arise will presumably be directed to the two District Courts whose initial orders in these cases this court has now — unanimously — found sufficiently questionable to be stayed as to the vast majority of the people potentially affected.”

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