Supreme Court Will Allow Part of Muslim Travel Ban to Go Into Effect, Will Hear Case Next Term


This morning the Supreme Court announced that it will hear arguments on the Muslim Travel Ban put into place by the Trump administration. The ban suspended most entries to the United States from six majority-Muslim countries. The Supreme Court also partially lifted the injunctions against the travel ban imposed in courts throughout the United States.

The Court said that it would consolidate cases arising from injunctions ordered by the Second and Fourth Circuit Courts of Appeal which enjoined the ban. In its order issued today, the court wrote that “the parties are directed to address the following question: ‘Whether the challenges to §2(c) became moot on June 14, 2017.'” The Muslim Travel Ban was supposed to be imposed so that the new administration could have ninety days to change vetting requirements. The ninety day period ended on June 14, leaving the Court wondering if there was still a need for it.

The Supreme Court lifted the injunction blocking enforcement of the Muslim Travel Ban for a limited group of people. The Court wrote; “We grant the Government’s applications to stay the injunctions, to the extent the injunctions prevent enforcement of §2(c) with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.” In other words, the injunction blocking the Travel Ban remains in effect for anyone coming to the United States with “any bona fide relationship with a person or entity in the United States,” but it is lifted for those who don’t have such a relationship.

The Court said that while there was a strong case for an injunction against the Muslim Ban generally when it impacted on people with relatives in the United States or business interests here, it is less clear that those who might seek to come here with no bona fide connections should be similarly protected. According to the Court:

But the injunctions reach much further than that: They also bar enforcement of [the Travel Ban] against foreign nationals abroad who have no connection to the United States at all. The equities relied on by the lower courts do not balance the same way in that context. Denying entry to such a foreign national does not burden any American party by reason of that party’s relationship with the foreign national. And the courts below did not conclude that exclusion in such circumstances would impose any legally relevant hardship on the foreign national himself. (“[A]n unadmitted and nonresident alien . . . ha[s] no constitutional right of entry to this country”). So whatever burdens may result from enforcement of [the Travel Ban] 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. At the same time, the Government’s interest in enforcing [the Travel Ban], 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. Indeed, EO–2 [Executive Order-2] itself distinguishes between foreign nationals who have some connection to this country, and foreign nationals who do not, by establishing a case-by-case waiver system primarily for the benefit of individuals in the former category. The interest in preserving national security is “an urgent objective of the highest order.” Holder v. Humanitarian Law Project, 561 U. S. 1, 28 (2010). To prevent the Government from pursuing that objective by enforcing §2(c) against foreign nationals unconnected to the United States would appreciably injure its interests, without alleviating obvious hardship to anyone else.

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