The real winners in SCOTUS’s decision on the travel ban orders

SCOTUS Class Photo, 2017

By: Cara L. Gallagher, weekend contributor

It was back to the Supreme Court for me this week. An unusually sleepy end of the October 2016 term, except for gossip of a potential retirement (Kennedy, not Ginsburg, this time), came to a dramatic end when the Chief Justice announced in the final minutes of the Court’s last day that they would hear the travel ban/pause cases next term.

There were two clear victories on Monday with this announcement that the Justices would hear the government’s cases defending President Trump’s two executive orders. One was for an imam named Dr. Ismail Elshikh, whose mother-in-law in Syria will now be able to travel to the United States. The other went to John Doe, an anonymous lawful resident who has been trying to get his wife home from Iran. Their victories came in the form of exceptions to the orders which allow their families to be reunited.

The rest of the Court’s 13-page order largely holds onto the spirit of the executive orders issued by the President, with some caveats.

Using the text of the decision, below is what the Supreme Court said in the grant, followed by the potential effects of those decisions, what all this means, and what happens next.

Background and the previous cases

Earlier this year, President Trump issued two executive orders restricting travel to the U.S. on foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen. Executive Order 2 (EO-2) “directs that entry of nationals…be suspended for 90 days.” The travel pause, as it’s called by the government, “is necessary to ensure that dangerous individuals do not enter the United States while the Executive is working to establish ‘adequate standards…to prevent infiltration by foreign terrorists.’” In EO-2, President Trump also capped the number of refugees in fiscal year 2017 at 50,000. It bans “any entries in excess of that number,” regardless of country of origin or circumstance.

What did the John Doe and the Dr. Elshikh sue President Trump for? Violating the Establishment Clause of the First Amendment. They believe his order “was motivated not by concerns pertaining to national security, but by animus toward Islam” because the six nations targeted are predominantly Muslim countries. Two lower courts – the 4th and 9th Circuit Courts – agreed the orders seemed motivated by anti-Islamic sentiment because no immediate threats to national security came from those nations. As evidence for the existence of “animus,” the 4th circuit relied upon President Trump’s statements as a candidate. The 4th and 9th Circuits put an injunction, or stop, on enforcement of Trump’s executive order.

The President’s counsel believes that the 1st Amendment argument fails because EO-2 is a “legitimate and bona fide justification of protecting national security.” Further, that Court shouldn’t have considered the President’s “campaign-trail comments to conclude that 2(c) – religiously neutral on its face – nonetheless has a principally religious purpose.”

As for the 9th Circuit’s decision, the government argues an absence of a direct threat does not mean national security is any less jeopardized by movement of actors from the excluded nations, and further this “constitutes impermissible judicial second-guessing of the President’s judgment on a matter of national security…”and 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.”

What the Supreme Court Ordered

The Trump administration gets the day in Court it wanted, but received a qualified victory. The Supreme Court’s stay on the injunction allows parts of the executive order to take effect, “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.” Not typically known for being prescriptive, the Chief Justice explained relatives of Dr. Elshikh’s and John Doe’s would be exempt from the travel ban/pause because they have “close familial relationships”, which will make them eligible for entry. Further, if a student was accepted to the University of Hawaii or foreign-born employee accepted a job at an American company, these groups will also not be denied entry.

According to the Justices, the lower courts went too far by broadening restrictions in that they “also bar enforcement of 2(c) against foreign nationals abroad who have no connection to the United States at all.” Further, a case-by-case waiver system allows the government to differentiate between those with a connection to the U.S. and those without. Toward the end of the order, the Justices showed they were compelled by the President and government’s interests in “preserving” national security.

Chief Justice Roberts’ order closes by returning to the refugee question with an answer similar to the travel issue. Enforcement of the executive order cannot be done “against an individual seeking admission as a refugee who can credibly claim a bona fide relationship with a person or entity in the United States.” This applies to refugees “even if the 50,000-person cap has been reached or exceeded.”

What It All Means

Speculation and concern that all the Justices agreed with all of the order is shortsighted. It presumes the left-leaning Justices supported the sections allowing restrictions for those without “bona fide” connections. It also presumes the right-leaning Justices supported exceptions to both the reasons for the travel as well as the cap on refugees. Justice Thomas wrote a dissent joined by Justices Gorsuch and Alito saying as much. Both sides have enough reasons to be a little bit happy and unhappy about this order. It’s what comes next, once the case is argued and decided likely next year, that will determine a true win-loss outcome.

The problems this order presents are thorny, but temporary. The Court gives deference to the government to decide who is and is not “bona fide.” Such deference has often been given to Presidents by the Justices, particularly when national security is at stake. However, subjectivity makes applicants vulnerable to determinations made by government officials as to what will qualify as a legitimate – or, perhaps thornier, what is an illegitimate – connection, which is likely to spur more lawsuits. Given how backlogged courts are and the glacial pace they tend to move, this seems rife with potential for problems. We need only wait until October for this case to be heard and a judgment to come before the end of next term to learn if the Justices believe the president has overstepped his authority.

Oral arguments and a decision are expected after the October start of the Court’s term.

The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.

20 thoughts on “The real winners in SCOTUS’s decision on the travel ban orders”

  1. As of July 3rd

    “Today we reached 49,255 refugees, 745 away from Trump 50,000 cap and, once we pass the 50,000 cap (aka ceiling), then the Supreme Court will be effectively running the UN/US Refugee Admissions Program.

    Refugees arriving over the Presidentially-determined ceiling of 50,000 are the responsibility of nine unelected judges who have decided that relatives can’t possibly be terrorists!

    The ceiling has been a cornerstone of the refugee program for 37 years and last week the Supremes took it upon themselves to lay out fuzzy parameters for exceeding the ceiling set by President Trump that no President in at least a decade has exceeded (maybe ever!).

    I just checked the latest numbers at Wrapsnet and see that as of today we have admitted 49,255 refugees this fiscal year. (The fiscal year ends September 30th).

    We should hit 50,000 within a few days. So, will the members of the court begin getting the daily Presidential security briefing when that happens? And, come to think of it, who tells the Supremes that they have exceeded their Constitutional authority? Hmmmm?” by Ann Corcoran

    Refugee Resettlement Watch

    Note one of the three main litigants Hawaii and What about the other liberal strongholds.

    Hawaii–3, DC–2 North Carolina 1766 and no stats on Virginia. California leads followed by Texas

  2. “Speculation and concern that all the Justices agreed with all of the order is shortsighted. It presumes the left-leaning Justices supported the sections allowing restrictions for those without ‘bona fide’ connections. It also presumes the right-leaning Justices supported exceptions to both the reasons for the travel as well as the cap on refugees. . . .”

    This hadn’t crossed my mind. Thanks for your post.

  3. I’m no lawyer but it appears that this will be moot in October.

  4. First, Syria is threatened from without, not from within. The U.S., Israel, and Saudi Arabia are doing their best to hasten the complete destruction of the country, overthrow the democratically elected government, and then install friendly dictators who can be bribed to allow an oil pipeline to run thru the country and on to Lebanon. This is mostly being done by ISIS – which is financed by the three parties which created it.

    NOTHING is going to be done to stop the majority of illegal immigrants coming here, because the 1% won’t stand for it. And the middle and lower classes of Americans will bear the major portion of the welfare costs involved in caring for them. The upper classes will reap the benefits of lower wage workers and their consumer expenditures.

    Quit pretending that our government is going to do anything that might impede the on-going stampede.

  5. (music- to the tune of; My Boomerang Won’t Come Back)

    Your… terrorists will come back…
    The terrorists will come back…
    They are the biggest disgrace to the muslim race..
    The terrorists will come back.

    They.. will… Walk across from Mexico..
    Fly in from Gerico..
    It won’t take long and they will be on your lawn..
    The terrorists are coming back.

    You can thank Trump for this..
    Obama too and all the screws..
    who sit in Congress too.

  6. When Trump first floated his Muslim Ban idea, it was advertised as being Extremely Urgent, in order to stop all those imminent attacks by Muslim Extremists.

    So, months later, none of these attacks have materialized. Why, then, is this ban still urgent? We “might” get attacked? I might get struck by lightning, too.

    1. In case you haven’t noticed, ISIS-trained agents are dwindling this past 6 months. Many are dead. More soon will be. And others (who were citizens of Western European nations groomed as infiltration agants by ISIS trainers in Syria) have escaped ISIS and are trying to reassimilate into their home nations.

      The rationale for the 90-day moratorium at the time it was invoked was stronger than it is now. And, legally, it will become moot by October. What is more important now is the go-ahead from SCOTUS to devise extreme vetting. Despite the TRO case presented by the Acting Solicitor General (which argued that there are no religious complications to the EOs), the extreme vetting program has belief-system vetting components (although not anti-Muslim). The new vetting program is anti-Fundamentalist Islamist, while simultaneously being pro-Reformist-Secular Muslim. So, there is a nuanced approach to belief systems, which implicitly recognizes that part of Islam’s believer base are declared enemies making war on America, while another subset of Muslims are our allies.

      The vetting program, or at least the part that investigates the applicant’s belief system sympathies, will be challenged and ultimately wind up in SCOTUS. This will be a very important case concerning the Establishment Clause, specifically whether it goes as far as to protect religious beliefs and practices which are oblige the believer to make war on the U.S. and Americans as a token of religious duty. And “make war” will be defined broadly to go beyond kinetic violence, but also include psychological warfare, information warfare, cultural warfare and demographic warfare. It will be a very important case historically, forcing the law to recognize non-violent forms of 21st-century warfare as threats and deserving of national security countermeasures. Pres. Obama’s Administration was skittish about nuanced belief-system distinctions as a strategy for winning the war on radical Islamist jihadism.

    2. Jay S:
      if you lock your doors at night even though you haven’t been victimized by a home invasion, you’re a hypocrite. And as a tip, if you want to parade around town raisng your ISIS flag, do it in an open field during thunderstorm.

    1. The 9th Circuit are the Columbia University football team of the judicial system.

  7. Well now the terrorists know how to get their favorite killers over here in short order without being vetted.

  8. Hi Cara, thank you for the post. In previous columns, Jonathan talked about how as October is over 90 days away, the executive order would be done by then and thus it will not be heard by the court (from what I understand). What do you think of this theory?

    1. I think there is a good chance the case will be dismissed as moot by obsolescence. Why? Because EO-2 doesn’t define extreme vetting, but only directs DHS and State to develop procedures for this vetting.

      If this analysis is correct, then EO-2 will time-out, and new plaintiffs, cases and appeals will need to be created in response to the the extreme vetting procedures. The issue of standing will again be raised. I fully expect SCOTUS to stand behind the longstanding policy that visa-application-denials (or delays) are not reviewable in Federal Court.

    1. Exactly right! I have empathy for stray cats and dogs. Even poor little Raccoons and Possums. But there is a limit to how many I can take into my home, or put food out for at night in case they are critters of the wild sort.

      Same with people, I feel empathy for the Syrians caught in a Civil War, and Mexicans trapped in the hellhole of their own country. I have more sympathy for them than I do for inner city ratched blacks and their retarded “baby daddy” culture. Or for meth smoking, tatted-up white trash. Both groups of which I have zero sympathy for, and even negative-sympathy.

      But the sorry-a$$ blacks and whites of our country, are our own citizens. And we should make sure that what jobs are available, are available for them first. And that they should not have to compete for jobs against a horde of wage-depressing illegal or even legal immigrants. And if our citizens don’t want those jobs, even if it is picking veggies in the hot sun, then off the welfare. food stamps, and housing vouchers.

      Squeeky Fromm
      Girl Reporter

  9. Grandparents are not allowed to visit but step sisters are. Seems unnecessarily punishing to families as the elderly are rarely terrorists,

    1. I would like to see a trade, Drop the fiance, which is prime for abuse since how the hell to you verify fiancehood, and allow grandparents.

      1. Tashfeen Malik, the San Bernandino terrorist, from Pakistan would not be covered under this ban both because of her country of origin and her status as a fiance.

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