he Supreme Court handed President Trump a partial victory Monday by reviving part of his disputed ban on foreign travelers from six Muslim-majority nations.
The justices in an unsigned opinion largely rejected a series of lower court orders that had blocked most of Trump’s policy from taking effect. They also agreed to hear the legal dispute in the fall.
The court’s order has the look of a compromise. It allows Trump’s order to go into effect, but not for “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States,” such as a spouse, a close relative, an employer or enrollment in a university.
The court said foreign travelers must demonstrate an existing relationship with the United States to be exempt from the ban.
“The student from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity,” the court said. “So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience.”
Since many visitors from the six affected countries have such a relationship, the impact of the order may be narrow.
Today’s ruling allows me to use an important tool for protecting our nation’s homeland.
— President Trump
Immigrants-rights lawyers who had sued to block Trump’s order were disappointed with the ruling, but downplayed its impact.
The order “will take effect in a very limited way,” said Karen Tumlin, legal director for the National Immigration Law Center in Los Angeles. The ban will apply “only to a subset of people who lack any relationship” with a person in this country or with an institution like a school or a hospital.
While the court agreed to review rulings from the 4th Circuit Court in Virginia and the 9th Circuit Court in California, its opinion acknowledged the case may be moot then because the 90-day ban will have expired.
The court noted the government is free to work on new vetting procedures for immigrants from the six countries. “We fully expect that the relief we grant today will permit the executive to conclude its internal work and provide adequate notice to foreign governments within the 90-day life of Sec. 2c,” the court said, referring to the key clause in the travel ban order.
In a statement, Trump called the decision a “clear victory.”
“Today’s ruling allows me to use an important tool for protecting our nation’s homeland,” he said.
The justices apparently agreed with Trump and his lawyers, who argued that the Constitution and federal immigration laws give the chief executive broad power to restrict or suspend the entry of foreign individuals or groups into this country.
Despite the earlier defeats, Trump had voiced confidence he would prevail once the travel ban reached the Supreme Court. His confidence was bolstered in April when his first appointee, Justice Neil M. Gorsuch, was confirmed and sworn in.
Gorsuch, along with Justices Clarence Thomas and Samuel A. Alito Jr., dissented in part on Monday, saying they would have put the entire order into effect immediately.
“I fear that the court’s remedy will prove unworkable,” Thomas wrote for the three conservatives. “Today’s compromise will burden executive officials with the task of deciding — on peril of contempt — whether individuals from the six affected countries who wish to enter the United States have a sufficient connection to a person or entity in this country.”
The 4th Circuit blocked Trump’s order entirely on the grounds that it reflected unconstitutional discrimination against religion. Its opinion cited Trump’s campaign pledge to enact a “Muslim ban.” The 9th Circuit also blocked the order on the grounds that Trump had not shown a true threat to national security.
The high-court decision suggests that the justices were as troubled by the bold intervention of the judges who blocked Trump’s order as they were by the new president’s use of his authority.
Trump’s ban, first issued on Jan. 27, called for a temporary ban on travelers from several Muslim-majority nations, including Libya, Somalia and Yemen, where legal authority had broken down. That order was blocked by the courts and the administration revised it to address some of the legal concerns. The other targeted nations in the current ban are Iran, Sudan and Syria. Iraq was included in the original ban, but left off the second one.
In defending both versions, the president’s advisers argued that a 90-day pause would allow the administration to devise new and stronger vetting procedures to screen travelers.
The case decided Monday was named Trump vs. International Refugee Assistance Project and Trump vs. Hawaii.
But federal district judges in Washington state, Hawaii and Maryland, acting on lawsuits, barred both orders taking effect. They cited Trump’s campaign promise to enact a “Muslim ban,” and said his order was suspect and probably unconstitutional because it reflected religious bias. Trump’s lawyers challenged those decisions, but lost in U.S. 4th Circuit Court of Appeals in Virginia and the 9th Circuit Court in California.
In appealing to the high court, acting U.S. Solicitor General Jeffrey Wall contended that the judges had wrongly “second guessed” the president’s determination that travelers from these six nations could threaten the nation’s security. He quoted a June 19 opinion by Justice Anthony M. Kennedy that said “national security policy is the province of the Congress and president,” adding that courts should “accord deference to what the executive branch has determined is essential to national security.”