The U.S. Supreme Court has decided to reinstate President Trump’s travel ban on visitors from six Muslim-majority countries and all refugees until the justices consider the case in full. Only those with strong ties to the U.S. are excluded.
The decision on Monday allows the Trump administration to suspend the entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, for 90 days. It also allows the government to suspend the entry of refugees for 120 days and limit the number of refugees entering the U.S. this fiscal year to 50,000.
The country’s highest court will hear arguments in October to consider the lawfulness of the executive order, but the travel ban’s limited duration means the case will be mostly irrelevant by then, unless Trump decides to extend the restrictions.
Just last month, judges of the 4th Circuit Court of Appeals ruled against the travel ban, saying they were unconvinced that the measures were ordered for the sake of national security. Instead, they said, it seemed more likely that they seek to fulfill Trump’s campaign promise to ban Muslims from entering the U.S.
Although the Supreme Court lifted in part the injunctions put in place by lower courts, the majority of justices said foreigners who have a “bona fide relationship” with a person or entity in the United States, such as students and relatives of American citizens, should not be barred from entering the country.
The Supreme Court noted that the Ninth Circuit Court of Appeals had sided with foreigners who had been admitted to the University of Hawaii, but the court’s ruling reached “much further” by also barring enforcement of the travel ban against foreigners who have no such connection to the United States.
“The equities relied on by the lower courts do not balance the same way in that context. 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, noting the lower court’s comment which said foreigners have no constitutional right of entry into the U.S.
As such, only those who can claim a “bona fide relationship” with a person or entity in the United States are excluded from the travel ban. This includes foreigners who wish to live with or visit a family member, foreigners who have been admitted to a U.S. school, foreigners who have accepted an offer of employment from an American company, or a lecturer invited to address an American audience.
The court added that a “bona fide relationship” does not exist if one of the exceptions is used with the purpose of evading the travel ban. “For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion,” the ruling said.
The same exceptions apply to those who seek to enter the U.S. as refugees, even if the 50,000-person limit on refugees for 2017 has already been exceeded. “But when it comes to refugees who lack any such connection to the United States, for the reasons we have set out, the balance tips in favor of the Government’s compelling need to provide for the Nation’s security,” the court said.
Justice Clarence Thomas, Justice Samuel Alito and Justice Neil Gorsuch agreed with the decision to lift the injunction, but disagreed with the majority’s decision to allow for exceptions, arguing that the government’s interest in preserving national security outweighs hardships caused by temporary denials of entry.
“Moreover, I fear that the Court’s remedy will prove unworkable,” Justice Thomas said in an opinion supported by Alito and Gorsuch. “Today’s compromise will burden executive officials with the task of deciding – on peril of contempt – whether individuals from the six affected nations who wish to enter the United States have a sufficient connection to a person or entity in this country.”
Thoms added: “The compromise also will invite a flood of litigation until this case is finally resolved on the merits, as parties and courts struggle to determine what exactly constitutes a ‘bona fide relationship,’ who precisely has a ‘credible claim’ to that relationship, and whether the claimed relationship was formed” to evade the travel ban.
Trump, who has repeatedly criticized the lower courts for halting his order, welcomed Monday’s decision.
“Today’s unanimous Supreme Court decision is a clear victory for our national security,” he said. “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.”
The American Civil Liberties Union (ACLU) – which has fought the travel ban in court – did not see Monday’s ruling as a loss, claiming the supreme court had “largely denied” the government’s request. “We will keep fighting for the rights of Muslim Americans and immigrants across our country, and for the Constitution that protects us all,” they said.
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