By Lisa Soronen
On its last opinion day of the term, the U.S. Supreme Court announced that it would rule on the constitutionality of the Trump administration’s revised travel ban.
In the meantime, to the extent the executive order prevents foreign nationals and refugees “who lack any bona fide relationship with a person or entity in the United States” from entering the country, it may go into effect until the Supreme Court rules on the merits of this case.
The president’s first executive order prevented people from seven predominantly Muslim countries from entering the U.S. 90 days, froze decisions on refugee applications for 120 days, and capped total refugee admissions at 50,000 for fiscal year 2017.
The 9th U.S. Circuit Court of Appeals temporarily struck it down, concluding this executive order was not religion-neutral, and that it likely violated the due process rights of lawful permanent residents, nonimmigrant visa holders and refugees.
The president’s second executive order prevents people from six predominately Muslim countries from entering the country for 90 days, but only applies to new visa applicants and allows for case-by-case waivers, and contains the same provisions regarding refugees as the original travel ban.
The 4th U.S Circuit Court of Appeals concluded the revised travel ban likely violates the Establishment Clause, noting that its “text speaks with vague words of national security but in context drips with religious intolerance, animus and discrimination.” It temporarily prevented the portion of the executive order regarding admission to the U.S. for 90 days from going into effect.
The 9th Circuit concluded that the revised travel ban likely exceeds the power granted to the president by Congress in the Immigration and Nationality Act. It temporarily prevented all of the provisions mentioned above from going into effect, including those affecting refugees.
The Supreme Court concluded that until it rules on the merits of this case the executive order cannot be enforced against persons, including refugees (even if they exceed the 50,000 cap), who have a “bona fide relationship with a person or entity in the United States.” In coming to this conclusion the court “balance[d] the equities” of those affected.
The court explained who does and does not have a “bona fide relationship with a person or entity" in the U.S. “A foreign national who wishes to enter the United States to live with or visit a family member . . . clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading [the revised executive order].”
In addition to hearing the merits of the Trump administration’s appeal, the court ordered both side to present arguments about whether or not the issue of people not being allowed in the U.S. for 90 days is now moot because this provision expired on June 14.
On June 14, the White House issued a presidential memorandum stating that the effective date of this provision is when the 4th and 9th circuit's injunctions are “are lifted or stayed.”
Regarding the merits of the case, at the center of the debate is how much attention, if any, courts should give to statements made by Donald Trump as a candidate and as president and others in the administration about Muslims generally and the executive orders specifically.
Numerous states supported both sides as amici in the litigation before the lower courts. Numerous local governments supported the challengers.
Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog on judicial matters.