Taking Up Trump Travel Ban, High Court Puts Injunctions on Ice

WASHINGTON (CN) – 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.

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, 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.”

Leon Rodriguez, who served from 2014 to 2017 as director of U.S. Citizenship and Immigration Services at the Department of Homeland Security, offered some insight Monday on the ruling.

“We will all have to watch closely how the Supreme Court’s reversal of the lower Court’s injunction will work,” said Rodriguez, now with the firm Seyfarth Shaw. “The direction that only individuals from the listed countries with bona fide relationship to a U.S. person or entity will still be protected by the injunction leaves wide room for interpretation by the responsible executive agencies.  While many relationships — immediate relatives, prospective employees or enrolled students — will be easy to adjudicate, others will be less obvious.”

Rodriguez highlighted as the big question “that the original purpose of these travel restrictions was to enable executive agencies to review screening and vetting procedures for travelers to the U.S. including those from the listed countries.”

“Under the terms of the orders, there should have at least been reports about those efforts by now, if not actual recommendations for new and/or improved procedures,” Rodriguez added in a statement.

Trump meanwhile called the decision “a clear victory for our national security.”

“As president, I cannot allow people into our country who want to do us harm,” he said in a statement. “I want people who can love the United States and all of its citizens, and who will be hardworking and productive.”

On the other side of the coin, an attorney for the National Iranian American Council explained why the stay deals a blow to its members.

“The Iranian-American community, Muslims across America, and families directly impacted by the ban are now reliving the chaotic days following the Muslim ban in January,” Shayan Modarres, legal counsel for the council said in a statement. “Fears of the Trump administration once again spreading chaos by triumphing in the courts and reinstituting parts of its ban that has separated families have been realized.”

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.”

Modarres with the National Iranian American Council called on the group’s supporters to “resist and thwart” the Trump administration’s Muslim ban. policy.

“The Trump administration’s new idea is to make it so hard on Iranians and Muslims to get a visa that visa officers will have the unrestricted discretion to reject visa applications for social media postings critical of Trump, or not being able to produce a 13-year-old domestic flight boarding pass,” Modarres said in a statement. “The president will stop at nothing to implement a Muslim ban, and until Congress decides to protect their constituents and our democracy, nothing will stop us from defending the constitution in court.”

Hardy Vieux with Human Rights First made similar remarks.

“The court’s ruling will leave refugees stranded in difficult and dangerous situations abroad, including those who have already waited a long time for U.S. resettlement,” Vieux said in a statement. “Many of these individuals may not have ‘bona fide relationships,’ but have strong reasons to look to the United States for protection. For Iraqis who have put their lives on the line to work with the United States this ruling creates confusion and uncertainty about the status of their relationships.”

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.”

The conservative-run Judicial Watch championed Monday’s ruling.

“This is a major blow to anti-Trump activist judges on the lower courts,” the group said in a statement. “And it is a big victory for our nation’s security, President Trump, and the rule of the law. In light of today’s strong ruling, the Trump administration should consider additional steps to keep terrorists out of the United States.”

Ginsburg concluded her dissent meanwhile by describing how courts and class counsel must take on a more active role, in light of Monday’s ruling, to protect the opt-out rights of class members.

“As the repose period nears expiration, it should be incumbent on class counsel, guided by district courts, to notify class members about the consequences of failing to file a timely protective claim,” she wrote. “‘At minimum, when notice goes out to a class beyond [§13’s limitations period], a district court will need to assess whether the notice [should] alert class members that opting out … would end [their] chance for recovery.’”

Attorney General Jeff Sessions highlighted the national-security issues in a statement.

“We have seen far too often in recent months that the threat to our national security is real and becoming increasingly dangerous,” Sessions said. “Groups like ISIS and al-Qaida seek to sow chaos and destruction in our country, and often operate from war-torn and failed countries while leading their global terror network. It is crucial that we properly vet those seeking to come to America from these locations, and failing to do so puts us all in danger.”

Though the attorney general mentioned al-Qaida, it is worth noting that most of the 9/11 plotters were from Saudi Arabia, which is not subject to Trump’s ban and is considered a Western ally. Aside from the 15 Saudi hijackers, there were two from the United Arab Emirates, and one each from Egypt and Lebanon. None of those countries are targeted by Trump’s ban.

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