Top Court Revives Part of Trump Travel Ban, Will Hear Appeal

  • People with close relationships in U.S. can enter, court says
  • Thomas, Gorsuch, Alito would have let full ban take effect

Supreme Court Lifts Block on Trump Travel Ban

The U.S. Supreme Court cleared much of President Donald Trump’s travel ban to take effect this week and agreed to hear arguments in the fall, giving the president at least partial vindication for his claims of sweeping power over the nation’s borders.

Trump called the decision a "clear victory for our national security." The ban on people entering the U.S. from six mostly Muslim countries can be applied for now to everyone except people who have a "credible claim of a bona fide relationship with a person or entity in the United States," the justices said Monday in an unsigned opinion.

That includes people visiting a close family member, students who have been admitted to a university or workers who have accepted an employment offer, the court said. But the court said people can’t avoid the ban by entering into a relationship solely for the purpose of traveling to the U.S.

Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said they would have let the entire ban take effect immediately. The case drew Chief Justice John Roberts and his colleagues into a divisive fight, testing the court’s approach toward a polarizing president.

Trump’s March 6 executive order said the 90-day travel ban would give officials time to assess U.S. vetting procedures and would address an "unacceptably high" risk that terrorists could slip into the country.

Lower courts had said Trump overstepped his authority and unconstitutionally targeted Muslims. The Supreme Court order ends a string of courthouse setbacks for the president and his travel ban.

The court’s 13-page opinion said the lower courts went too far by blocking the travel ban from applying even to people with no connection to the U.S.

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"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 court said.

Omar Jadwat, director of the American Civil Liberties Union immigrants’ rights project, said on a conference call with reporters that the order should "allow for only the narrowest implementation of any part of the ban." He said his organization wants to ensure that the government doesn’t try to use the decision "as a backdoor" into implementing a broader ban.

Attorney General Jeff Sessions said groups like Islamic State and al-Qaeda "often operate form war-torn and failed countries while leading their global terror network." The U.S. needs to "properly vet" people coming from those locations, he said in a statement.

The Department of Homeland Security said it will implement Trump’s order "professionally, with clear and sufficient public notice, particularly to potentially affected travelers, and in coordination with partners in the travel industry."

An earlier version of the order -- issued a week after Trump took office in January -- threw airports around the world into chaos and prompted an outcry from universities and the technology industry before it was blocked in court.

New Lawsuits

Cornell University Law School professor Stephen Yale-Loehr called the decision a partial victory for Trump, but he said in an email that it will be confusing to implement because of the vagueness of what constitutes a "bona fide" relationship with a U.S. person.

"How individuals will prove such a relationship, and whether the burden of proof will be on the government or the individuals seeking entry, remains to be seen," Yale-Loehr said. "I predict chaos at the border and new lawsuits as foreign nationals and refugees argue that they are entitled to enter the United States.”

The Supreme Court didn’t directly resolve the underlying issues in the case, instead focusing on the scope of the lower court orders and the impact those orders would have. Still, the opinion suggested support for Trump’s claim of broad presidential power to protect national security.

"The interest in preserving national security is an urgent objective of the highest order,” the court said. "To prevent the government from pursuing that objective by enforcing Section 2(c) against foreign nationals unconnected to the United States would appreciably injure its interests, without alleviating obvious hardship to anyone else."

Section 2(c) is the part of Trump’s order that bans entry into the U.S. by people from the six nations for 90 days. Much of it can now take effect in three days, under the terms of a memo issued by Trump this month.

‘Implicit Conclusion’

Thomas said the court had made an "implicit conclusion" that the government was likely to win the case.

Two federal appeals courts blocked the ban. One court said the policy was unconstitutionally "steeped in animus" toward Muslims, while the other said Trump exceeded his powers under federal immigration laws.

The court said it will hear the administration’s appeal in the nine-month term that starts in October. Because of the temporary nature of the 90-day ban, however, it’s not clear exactly what will be left for the justices to decide at that point. One possibility is that Trump could issue a new executive order once officials complete their review of the vetting procedures.

The court also partially reinstated Trump’s 120-day suspension on the admission of refugees.

‘Restore Clarity’

In court papers, the administration said Supreme Court intervention was needed to "restore clarity regarding the president’s ability to discharge his constitutional duty."

Two groups of challengers urged the court to keep the ban on hold and reject the appeals. They said Trump’s executive order is an extension of his campaign call for an explicit border ban on Muslims.

The order is a "thinly veiled Muslim ban," a group led by Hawaii argued. The policy will halt entry by people from Iran, Libya, Somalia, Sudan, Syria and Yemen.

On June 5, Trump tweeted that the revised order was a "watered down, politically correct version" of the original ban he issued in January.

The cases are Trump v. International Refugee Assistant Project, 16-1436, and Trump v. Hawaii, 16-1540.

— With assistance by David McLaughlin, and Erik Larson

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