SCOTUS Allows Travel Ban to go into Partial Effect and Grants Certiorari

The U.S. Supreme Court announced today that it will decide the constitutionality of President Donald Trump’s March 6 executive order, which contains the “revised travel ban” that was halted by federal district courts in Hawaii and Maryland before its scheduled implementation. The court’s ruling also granted in part the Trump Administration’s request to stay the lower court’s preliminary injunction blocking implementation of the travel ban. The stay remains in effect until the Court lifts it or issues a definitive ruling. The Court has consolidated the challenge to the decisions in the U.S. Court of Appeals for the Fourth Circuit and the U.S. Court of Appeals for the Ninth Circuit and will hear oral arguments on this matter in October 2017.

The Court specifically stayed only part of the lower court’s injunction, and will now allow the executive branch to enforce the portion of the ban on entry only for individuals “who lack any bona fide relationship with a person or entity in the United States.” The court cited the balance of equities and consideration of “the overall public interest” as its reasons for granting the partial stay. However, it maintained the lower court’s injunction against the entry ban as it pertains to individuals with U.S. connections, such as the plaintiffs in the lower court cases, who have family ties here or would come to the United States as students under the F-1 visa program. It also cited individuals who have accepted an offer of employment in the United States as having a connection for this purpose. It exempted from protection any relationship formed solely for the purposes of evading the entry ban.

Finally, the ruling also stayed the injunction implemented by the lower court in Hawaii, which pertains to another section of President Trump’s executive order, suspending refugee admissions and the refugee cap. The court again weighed the interests of persons with connections to the United States and maintained protection of those with bona fide relationships in the United States. However, the court’s ruling will allow enforcement of the provisions that allow denial of entry for those seeking to enter as refugees who lack such bona fide relationships in the United States.

The SCOTUS ruling was unsigned and followed by a partial concurrence and partial dissent written by Justice Clarence Thomas and joined by Justice Samuel Alito and Justice Neil Gorsuch. The partial concurrence/partial dissent opinion states that the court’s granting of certiorari constitutes an “implicit conclusion” that the Trump administration has demonstrated that it is likely to succeed on the merits in its appeal. It criticizes the court’s creation of an “unidentified, unnamed group of foreign nationals abroad” that is essentially an ad hoc protected class for the purposes of the lower court’s injunction. Most substantially, the partial dissent criticizes the partial maintenance of the lower court’s injunction as “unworkable,” as it will force executive branch authorities to make individualized judgments about what constitutes a “bona fide relationship,” a “credible claim” to the relationship, and whether the relationship was entered into solely to avoid the ban on entry, or face the threat of running afoul of the ruling and being held in contempt of court. The opinion accuses the majority of opening doors to a wave of new litigation unless and until the court issues a final judgment regarding the constitutionality of the travel ban. 

The full SCOTUS ruling is available here. For more information including background on the issuance of the executive order and legislation related to the “revised travel ban,” please see our prior news releases:

• Travel Ban 2.0: President Trump Signs New Executive Order
• Federal District Courts Block Second Version of the Trump Administration’s “Travel Ban”

Client Insights

1. The ruling has made it very likely that the U.S. Departments of State and Homeland Security (DHS) will be quickly implementing portions of the revised travel ban. It is possible that agents of these bodies, such as Customs and Border Protection (CBP) officers and consular officials, could implement the ban on entry for certain persons prior to issuance of further guidance from their agencies. This could happen as soon as today.
2. The DHS has already indicated that its guidance on the application of the Court’s ruling is forthcoming. Such guidance is expected to indicate how agency officials will evaluate whether an individual has a “credible claim” of a genuine relationship with an individual or institution in the United States.
3. Individuals who may have been subject to the original ban, e., citizens of Iran, Yemen, Libya, Somalia, Sudan, and Syria who were not U.S. permanent residents should consult with legal counsel prior to applying for U.S. entry. Given the new uncertainty in the admissions process, expanded scrutiny and placement in a secondary inspection by CBP Officers is certainly possible.
4. Employers and individuals are reminded that CBP officers hold vast power when admitting individuals at the border. Such power includes the ability to detain individuals, to search their belongings and possessions (including electronic devices), and denial of the right to counsel.
5. It is unclear at this point how the stay of the injunction will be implemented by impacted agencies, but we expect that further information is forthcoming. Please stay tuned into our Navigating Change news for updates to this situation as it unfolds.