The Supreme Court says it will decide the fate of President Trump’s revised travel ban, agreeing to hear arguments over immigration cases that were filed in federal courts in Hawaii and Maryland and allowing parts of the ban that has been on hold since March to take effect.
The justices removed the two lower courts’ injunctions against the ban “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States,” narrowing the scope of those injunctions that had put the ban in limbo.
Trump called the Supreme Court’s order “a clear victory for our national security.”
The president’s revised executive order blocks new visas for travelers from six majority-Muslim countries for 90 days, and suspends the U.S. refugee program for 120 days. Challengers to the ban said it would harm people who have legitimate reasons to be in the U.S. — including through family ties, work and education.
The travel ban will remain on hold for plaintiffs who challenged the executive order and for anyone who is “similarly situated,” the justices say — in other words, foreign nationals who have relatives in the U.S., or who plan to attend school or work here.
Refugees will face similar criteria, with anyone lacking connections in the U.S. denied entry. In its order, the court stated, “the balance tips in favor of the Government’s compelling need to provide for the Nation’s security.”
Saying the petitions and injunctions “are accordingly ripe for consideration,” the Supreme Court said on Monday that the two cases will be consolidated. The court’s clerk will set a date for the case in the session that begins in October, the justices said, while noting that the Trump administration “has not requested that we expedite consideration of the merits to a greater extent.”
U.S. Attorney General Jeff Sessions said today’s move is “an important step towards restoring the separation of powers between the branches of the federal government.”
Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, called the travel ban unconstitutional, saying, “Courts have repeatedly blocked this indefensible and discriminatory ban. The Supreme Court now has a chance to permanently strike it down.”
In a statement released by the White House, Trump wrote:
“As President, I cannot allow people into our country who want to do us harm. I want people who can love the United States and all of its citizens, and who will be hardworking and productive.
“My number one responsibility as Commander in Chief is to keep the American people safe. Today’s ruling allows me to use an important tool for protecting our Nation’s homeland. I am also particularly gratified that the Supreme Court’s decision was 9-0.”
The court says its nine justices agreed in the 13-page decision to take the case and place stays on some of the preliminary injunctions. But several justices wanted to go further — Justice Clarence Thomas wrote a three-page opinion, joined by Justices Samuel Alito and Neil Gorsuch, in which he said the government’s request for a stay should have been granted in full.
“I agree with the Court’s implicit conclusion that the Government has made a strong showing that it is likely to succeed on the merits,” Thomas wrote, “that is, that the judgments below will be reversed.”
Thomas criticized the decision to keep the injunctions in place for what he called “an unidentified, unnamed group of foreign nationals abroad,” saying it places a burden on officials to determine who has a “bona fide relationship” with a person or organization in the U.S.
Trump’s revised executive order was put on hold by lower court judges in Hawaii and Maryland in March, hours before it was set to take effect. Two federal appeals courts left those nationwide injunctions in place, setting up one final appeal for the Trump administration.
The White House argues that this executive order, like the previous version the president signed in January, is necessary to protect national security. The initial version caused chaos at airports across the country until it was blocked by a federal judge in Washington state, prompting the administration to craft a revised version that omitted references to religion and specifically exempted green card holders. But that order, too, was challenged by lawsuits, and it was blocked by lower courts before it ever went into effect.
As part of its instructions to the parties in the case, the high court said today that they should answer the question of “whether the challenges … became moot on June 14, 2017” — referring to the order’s timeframe of 90 days.
Both of the federal appeals courts that have considered the revised executive order have ruled against the administration — but for different reasons.
The appellate judges weren’t directly ruling on the merits of the travel ban itself. But in order to decide if the lower court injunctions were appropriate, they had to weigh the probable impact of the order and the likelihood that the legal challenges would succeed.
The 4th U.S. Circuit Court of Appeals looked extensively at whether the travel ban violated the Constitution by discriminating on the basis of religion. The challengers in that case, led by the nonprofit International Refugee Assistance Project, argued that the travel ban is a thinly veiled attempt to block Muslims from entering the country, something Trump and his advisers talked about during and after the presidential campaign.
Lawyers for the Department of Justice countered that courts should look only at the language of the executive order itself, which does not mention religion explicitly. But that argument did not prevail. Writing for the 10-3 majority, Chief Judge Roger Gregory said the executive order “speaks with vague words of national security but in context drips with religious intolerance.”
The ruling from the 9th U.S. Circuit Court of Appeals focused on federal law. The court found that the president likely exceeded his statutory authority under the Immigration and Nationality Act.
“The order does not offer a sufficient justification to suspend the entry of more than 180 million people on the basis of nationality,” the 9th Circuit judges wrote. “National security is not a ‘talismanic incantation’ that, once invoked, can support any and all exercise of executive power.”
The Trump administration moved quickly to appeal both rulings to the Supreme Court.
“The Executive Branch is entrusted with the responsibility to keep the country safe under Article II of the Constitution,” Sessions said in a statement after the 9th Circuit ruling. The attorney general called the threat of terrorism “immediate and real,” and said the lower court’s injunction “has a chilling effect on security operations overall.”