Blog No. 148. The Incredible Shrinking Travel Ban Has Shrunk Again (But Don’t Let Granny On That Plane Just Yet)

On June 26, the Supreme Court announced its decision in two cases involving the Trump travel ban. The decision was issued per curiam (not signed by any individual justice) and was accompanied by an opinion signed by three justices, concurring in part and dissenting in part. The President greeted the decision with an exultant tweet:

Very grateful for the 9-0 decision from the U. S. Supreme Court. We must keep America SAFE!

Did the Supreme Court rule 9-0 in favor of the travel ban? Well, not exactly, except in the patois of Trumpspeak. The Court had in fact ruled 9-0 in Trump’s favor only with respect to foreign nationals who have no previous relationship with United States individuals or entities. No such foreign nationals were parties in either case, and claims on their behalf had from the outset been more difficult to maintain, particularly in the context of injunctive relief. More important, however, the Court ruled against the administration by 6-3 in refusing to stay the injunctions that lower courts had issued and that protected not only the plaintiffs in those cases but others similarly situated. (Justices Alito and Gorsuch joined an opinion by Justice Thomas dissenting from the latter ruling.)

The Trump ban presented to the Court would have suspended the entry of visa applicants from six Muslim countries (Iran, Sudan, Syria, Libya, Somalia and Yemen) for 90 days and entry of refugees from all regions for 120 days. As a practical matter, the part of the travel ban upheld by the Court may have a only very limited impact on visa applicants who are not refugees. As reported by NBC News:

“Our impression is the vast majority of people would still be able to travel because they have a pre-existing relationship, either through family or work,” said Betsy Fisher, the policy director at the International Refugee Assistance Project, one of the plaintiffs in the case. “That is the nature of visa requirements.”

For instance, of the 12,998 immigrants who entered the U.S. from Yemen last year, nearly all — 12,563 — had family in the country, according to State Department data.

For refugees, the impact may be broader, but even there the extent is unclear. The Supreme Court’s opinion required that foreign nationals have a pre-existing relationship with a U.S. individual or entity and many refugees have a connection with a U.S.-based resettlement agency. The administration says that such a relationship would not qualify, but that position is likely to face legal challenges.

In any case, the travel ban considered by the Supreme Court was a mere shadow of Trump’s campaign promise to “ban all Muslims” although it retained the odor of the candidate’s pronouncements. It was also a greatly pared-down version of the administration’s initial order. Iraq had been taken off the banned list, and the second order provided numerous exceptions not found in the previous version: for travelers from those countries who are legal permanent residents of the United States, for dual nationals who use a passport from another country and for those who have been granted asylum or refugee status. The second version also removed an exception to the refugee ban for members of religious minority groups — which many had seen as evidence that the first ban was meant to discriminate against Muslims — and no longer imposed an indefinite prohibition on travelers from Syria.

Indeed, Trump had publicly lamented the changes from the initial order in a series of tweets on June 5:

People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN! 

The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.

The Justice Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court – & seek much tougher version!

Thus, the survival of the watered down version of the travel ban was not a “victory” for the administration but merely the avoidance of a total and crushing defeat. Moreover, such a defeat may have been merely postponed until the Court addresses the merits of the claims in the fall.

Oddly, neither the per curiam opinion by the Court nor the dissent by Justice Thomas addressed the merits of the claims on which the Fourth and Ninth Circuits had based their opinions when they upheld the injunctions issued by district courts. Those claims had been asserted under a) the First Amendment of the Constitution, which bars religious discrimination, and b) the requirements of the Immigration and Naturalization Act. Both the opinion of the Court and the dissent focused entirely on balancing the equities between the claimants (visa applicants and refugees) and the government, with each opinion reaching a different conclusion as to where the weight of the equities lay.

The exclusive focus on balancing the equities was surprising since assessing that balance is only one element in deciding whether injunctive relief, or a stay of injunctive relief, is appropriate. The opinion of the Court cited Nken v. Holder for the proposition that “In assessing the lower courts’ exercise of equitable discretion, we bring to bear an equitable judgment of our own.” Justice Thomas in dissent, however, cited Nken for four factors governing whether a stay should be granted, including the “critical factor” of “whether the stay applicant has made a strong showing that [it] is likely to succeed on the merits.” Thomas then made this remarkable assertion:

I agree with 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.

There is, quite simply, no basis whatever for that description of the per curiam decision and, indeed, the logic of the decision points in exactly the opposite direction. As Thomas’s opinion had earlier acknowledged, the responsibility of the Court is first to determine whether the critical factors—including likelihood of success—were satisfied and, if they had been, only then concern itself with “balancing the equities.” In other words, when the Court’s per curiam decision discussed balancing the equities, it necessarily assumed a likelihood of success by the claimants on either constitutional or statutory grounds or both.

Apart from noting the curious error in the dissent, however, it might be a mistake to put too much weight on the logic of the per curiam decision. We can only speculate on the reasons why the Court did not address the likelihood of success, which both lower courts found to weigh in the claimants’ favor. One possibility is that the Court regarded both the constitutional and statutory claims as raising difficult issues that the Court could avoid temporarily and perhaps permanently if the cases become moot.

Without getting too deep into the technical weeds of mootness, it may be noted that the Court ordered the parties to brief the question of whether the 90-day ban applicable to visa applicants became moot on June 14 (the ninetieth day after the order was issued). Some legal observers have also suggested September 27 as an alternative date for mootness (90 days after the effective date of the Supreme Court’s order). The 120-day ban applicable to refugees has a later end date, but that period may also have passed by the time the cases come before the Court in the October term. In either case, it would seem that the government will have had ample time to complete the review of vetting procedures that the travel ban was ostensibly designed to protect. Thus the constitutional and statutory issues on which the Court might ultimately rule may not involve the temporary 90-day and 120-day bans but the permanent restrictions to which they give rise.

Meanwhile, there will be some confusion as to exactly how the Supreme Court’s order will be implemented. Indeed, the dissent foresaw such confusion and  predicted that a “flood of litigation” would result. That fear may be exaggerated and, given the shelf-life of the bans, any litigation involving them is likely to be short-lived. Nevertheless, there will be ample opportunity for legal challenges. For example, the Court indicated that its stay would cover those with a “close familial relationship” to a person in the United States, but it did not define that term. On Thursday, the State Department announced that parents, including in-laws, would be considered “close family,” but that grandparents or grandchildren would not. Step-siblings and half-siblings will be considered “close,” but not nieces or nephews.  While a plausible legal argument can be made in support of the State Department’s position, it is certainly questionable whether national security is enhanced by a blanket exclusion keeping Granny off the plane.

Indeed, legalities aside, there has been precious little evidence that national security will be enhanced by any aspect of the 90-day ban or the 120-day ban, or that the country’s security has been impaired in any way by judicial intervention on behalf of the rule of law.

One thought on “Blog No. 148. The Incredible Shrinking Travel Ban Has Shrunk Again (But Don’t Let Granny On That Plane Just Yet)

  • Since when has freedom of travel to our country, much less political asylum, depended upon one’s nationality or religion? Two U.S. Courts of Appeal enjoined the president’s orders pending trial on the merits, and the Supreme Court should have left well enough alone.

    It is perhaps even more troublesome that new justice Gorsuch would have preferred a complete stay, thus giving full sway to the president’s Muslim bans.

    People watching his confirmation hearing may reasonably have believed that the Court would be getting a moderate justice. Apparently not.

    All the more reason twe need Justice Kennedy to remain on the Court until we get a new president. Trump’s
    Morning Joe tweets suggest that day may not be long in coming.

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