https://www.nytimes.com/2017/06/02/us/politics/travel-ban-supreme-court-trump.html

Trump v. International Refugee Assistance Project (the travel ban case)

Some quick background. President Trump was sworn into office on January 20th, 2017. On January 27th, 2017, Trump signed a series of executive orders regarding immigration, border security, and refugees. The last of the executive orders was correctly named a travel ban by the popular press in the United States.

The executive order regarding refugees named 7 countries which had outright bans. ( Iraq, Iran, Syria, Libya, Yemen, Sudan, and Somalia). The original Executive Order suspended all Travel for all persons from those nations from entering the United States. This included Legal Permanent Residents who were abroad and were now denied entry into the US.

Chaos ensued. There were literally people who got on a plane in one place expecting to land in the US no problem, when mid-flight, the Executive Order made it impossible for those people to land in the US.

I think its important to remind ourselves as to how crazy the first 72 hours were. See here, here, and here.

Federal Courts correctly shut down the original Executive Order with a “stay” on multiple grounds.

The Trump Administration begrudgingly rewrote the Executive Order making it less insane. Trump signed the order on March 6, 2017. The Administration also followed up with a memo to try to avoid chaos in the airports as had happened in January. The new Order took out Iraq as one of the 7 countries listed and softened up in several other areas to make movement of people from the Middle East easier than the previous order.

On March 15th, a Federal District Judge in Hawaii again stopped the implementation of the March 6th Executive Order temporarily. The same judge then made the stay permanent on March 29th. Other federal judges also stopped the travel ban.

The Trump Administration Appealed to the 4th and 9th circuits. Both found the ban unconstitutional in May 2017.

The 4th Circuit found, “ in context drips with religious intolerance, animus and discrimination.” It was, therefore, not constitutional.

Trump appealed to the US Supreme Court which heard arguments and gave a decision today.

WHAT THE SUPREME COURT SAID

  1. This is a “per curiam” decision. This is an unsigned opinion. It does not necessarily mean a unanimous decision. (though, I think many in the press are saying so).
  2. There is a concurrence written by Justice Thomas, and signed by Alito and Gorsuch. (These three just let us know that in October they will be siding with Trump).
  3. The per curiam decision highlights points of interest in the EO.

a. The EO directs the Secretary of Homeland Security to conduct a global review to determine whether foreign governments provide adequate information about nationals applying for United States visas. It directs the Secretary to report his findings to the President within 20 days of the order’s “effective date,” after which time those nations identified as deficient will be given 50 days to alter their practices.

b. The EO directs that entry of nationals from six of the seven countries designated in EO–1 — Iran, Libya, Somalia, Sudan, Syria, and Yemen — be “suspended for 90 days from the effective date” of the order.

c. The EO suspends “decisions on applications for refugee status” and “travel of refugees into the United States under the USRAP” for 120 days following its effective date.

d. The EO caps the number of refugees at 50,000

e. The order’s effective date is March 16, 2017

4. The Court highlights the major concerns with the order as follows:

a. The order violates the Establishment Clause of the First Amendment because it was motivated not by concerns pertaining to national security, but by animus toward Islam. (The parties suing the president referenced his campaign speeches and materials. The Supreme Court notes that in its decision).

and

b. The EO contradicted portions of the INA (Immigration and Nationalization Act).

5. The Court then talks about “shifting ground” since the EO has date ranges attached to it. In June, 90 days had passed since the signing of the order and certain provisions in the order were no longer in effect.

6. The government argued back that it:

a. Was consistent with power granted under the INA to the president.

b. The EO was not discriminatory based on religion.

c. The EO touches upon “facially legitimate and bona fide” justification of protecting national security.

7. The Court then talks some legalese regarding “stay” “injunctions” and the like. The basic idea there is the Court can do what it wants at this stage since it is only looking at what should happen until the whole case is heard in the fall.

Meaning, the Court is only ruling on whether or not the Travel Ban should be stopped until the fall when the case is heard in full by the Court.

8. The decision allows most of the EO to apply to people who have no connection to the United States.

Meaning, if a person applies for refugee status and has no connection to a US Citizen, a family or other close tie, then they can be stopped from applying by this EO.

9. If the person applying has a family connection, the EO cannot stop that person from entering the United States.

I want to note here that the paragraphs that actually take down the stay, or restore Trump’s order, have nearly no citations in them. Totally weird. The court has created this “family connection” rule out of no where. Totally made the rule up. They give some good reasons as to why. On balance, excluding US family members from seeking refuge in the US does more harm than good. Denying a family member does not strengthen national security.

BOTTOM LINE

Potential refugees with no US family member ties are at the mercy of the Trump Administration.

THE CONCURRENCE

  1. Agrees with the Per Curiam decision almost all the way.
  2. Dissents as tot he per curiam decision because the three justices believe that on balance, national security outweighs the harm to US family members abroad.
  3. Criticizes the Per Curiam decision for making up a “ an unidentified, unnamed group of foreign nationals abroad. No class has been certified, and neither party asks for the scope of relief that the Court today provides.”

Meaning, you made up a “family connection” rule that doesn’t make sense and you shouldn’t make it up in the first place. That’s Congresse’s job.

LDS, Husband, Father, Son, Brother, Immigration Lawyer