Supreme Court partially upholds “Travel Ban”

By Jacob Waterton-Bailey

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The United States Supreme Court has declared that certain provisions of President Trump’s Executive Order 13780[1], commonly referred to as the “Travel Ban” or “Muslim Ban” for their alleged religious prejudice, can be implemented. This has been declared a “win” for the President’s Administration, which had been marred by successful legal challenges against the previous and current Executive Orders.

 

Throughout the campaign trail, then presidential candidate, Donald Trump adopted a hard-line rhetoric on the issue of immigration.

 

Largely an appeal to his voter base, this rhetoric ranged from deriding Mexicans, to calling for “a total and complete shutdown of Muslims entering the country.”[2]

Subsequently, the first Executive Order 13769 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” was signed by the President a week after his swearing in. This was the first direct translation of campaign rhetoric into policy. What immediately followed  were images broadcast around the world depicting confusion at United States airports and protesters emerging showing their outrage for the Order. On February 3  2017, in the case of Washington v Trump,[3] Judge James Robart issued a temporary restraining order on the enforcement of the Executive Order nationwide, declaring that the Order demonstrated a “likelihood of irreparable injury and the injunction being in the public

interest.”[4] This was subsequently upheld by the Ninth Circuit Court of Appeals.[5]

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Despite the President’s self-declared need for a quick policy decision of the implementation of the Travel Ban to prevent “bad” people from flooding into the country, it was not until March 6 2017 that the President signed Executive Order 13780. Keeping the majority of the same provisions as the Previous Order, it removed Iraq from the list of countries whose nationals had a 90 day entry ban into the United States. Iran, Libya, Somalia, Sudan and Yemen remained within the Order.[6] It also maintained the 120 day ban on the United States Refugee Admissions Program (USRAP) and kept a cap of 50,000 refugee admissions in the 2017 fiscal year.[7]  Again, in a number of cases brought by states, such as Hawaii and Washington, temporary restraining orders were imposed which prevented section 2, the ban on entry from the six countries listed, and section 6, the suspension of the Refugee Admissions Program, from taking effect.

 

However, the President and orchestrators of the Executive Order have some temporary rest from the legal battles because on June 20, the United States Supreme Court reinstated key provisions of the Order allowing the suspension of

immigration from the six countries listed and the Refugee Admission Program. The stay on the lower court injunctions would apply, “to the extent the injunctions prevent enforcement with respect to foreign nationals [and refugees] who lack any bona fide relationship with persons or entities in the United States.”[8] Importantly, the Supreme Court acknowledged that the Government’s need to provide national security took precedence over any claim by such persons.

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Problematic though, was the decision by the Supreme Court not to clarify the full scope of persons who would constitute a bona fide relationship. There was indication that those with a job offer and students who were attending university would qualify. Much of the scope has been left for the State Department to determine who has a bona fide relationship. Indications suggest, in a familial context, that this includes spouses, parents, children, siblings, sons and daughters-in-law but that so far persons such as grandparents and cousins are excluded.[9] This lack of workable definition is problematic at the very least and, as dissenting Justice Thomas pointed out, “will invite a flood of litigation until the case is finally resolved on the merits, as parties and courts struggle to determine what exactly constitutes a bona-fide relationship.”[10]

 

The Supreme Court will hear oral arguments by both parties in October of this year. There is some indication that the decision to do so indicates a view that the Justices believe the merits of the Government’s applications are likely to succeed. Yet, any pending decision by the court may be insignificant, and moot, due to the fact that the various provisions of the Executive Order will have expired before arguments are presented. In the meantime, it is something that is likely to divide legal and non-legal opinion. Many still believe it is built on religious prejudice, although a recent Politico-Morning Consult poll found that 6 out of 10 Americans support the new ban.[11] Should the provisions of the order still be in place, it is likely to be a highly contentious case that will merely reinforce this public divide even further.

 

Sources:

[1] Executive Order 13769, Protecting the Nation From Foreign Terrorist Entry into the United States, January 27 2016, 82 FR 8977

[2] ‘Donald Trump’s Full Speech on Banning Muslims from America’ (The Independent, 8 December 2015) <http://www.independent.co.uk/news/world/americas/donald-trump-speech-republican-presidential-candidate-calls-for-complete-shutdown-of-muslims-a6764301.html> accessed 20 July 2017.

[3] United States District Court Western District of Washington at Seattle, State of Washington, et al v Donald J. Trump, et al, Case 2:17-cv-00141-JLR

[4] Ibid

[5] United States Court of Appeals for the Ninth Circuit, State of Washington; State of Minnesota v Donald J. Trump, President of the United States, et al., (February 4th 2017), D.C. No. 2:17-cv-00141

[6] Executive Order 13780, Protecting the Nation From Foreign Terrorist Entry into the United States, March 6 2017, 82 FR 13209, s.2(c)

[7] Ibid, s.6

[8] Donald J. Trump, President of the United States, et al. v International Refugee Assistance Project, et al, No. 16-1436 (16A1190), 528. U.S. p.9 and 11

[9] ‘Background Briefing on the Implementation of Executive Order 13780 Protecting the Nation From Foreign Terrorist Entry Into the United States’ (U.S. Department of State) <http://www.state.gov/r/pa/prs/ps/2017/06/272281.htm> accessed 20 July 2017.

[10] Donald J. Trump, President of the United States, et al. v International Refugee Assistance Project, et al, No. 16-1436 (16A1190), 528. U.S (Opinion of Thomas J.) P.3

[11] Jonathan Allen, ‘Most American Voters Support Limited Travel Ban: Poll’ Reuters (5 July 2017) <http://www.reuters.com/article/us-usa-immigration-poll-idUSKBN19Q2FW>.

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