Supreme Court allows limited travel ban to take effect; will hear Trump appeal

Story by The Hill
Written by Lydia Wheeler

The Supreme Court on Monday granted the Trump administration's request to reinstate part of the travel ban meant to temporarily block people from six predominantly Muslim countries from entering the United States.

The court also agreed to hear the government’s appeal of lower court that had prevented the ban from going into place.

Overall, the decisions represented a victory for Trump, who for months has fought to implement his executive order affecting travelers from Iran, Libya, Somalia, Sudan, Syria and Yemen.

The court will hear the case when it returns for the fall term, which begins the first Monday in October. Arguments have not yet been scheduled.

As a result of the decision, people who do not have a bona fide relationship with a person or entity in the United States would be barred from entry once the order goes into effect within 72 hours.
People who can show they have a relationship to a person or entity will be allowed to enter the country.

The court said denying entry to a person who does not have a relationship to a person or entity in the U.S. "does not burden any American party by reason of that party's relationship with the foreign national. And the courts below did not conclude that exclusion in such circumstances would impose any legally relevant hardship for the foreign national himself."

Citing past precedent, the court said the interest in preserving national security is "an urgent objective of the highest order."

"To prevent the government from pursuing that objective by enforcing [the ban] against foreign nationals unconnected to the United States would appreciably injure its interests without alleviating obvious hardship to anyone else," the court said.

Justices Clarence Thomas and Samuel Alito, along with the newest justice, Neil Gorsuch — Trump's nominee to the court earlier this year — wanted to lift the hold on the entire ban, according to the order.

It is unclear how many justices wanted to put part of the order back in place immediately, and it is unclear how many justices wanted to hear the case. At least five votes were needed to reinstate the ban in part, and at least four votes were needed to hear the government's appeal.

The Supreme Court is typically reluctant to step in unless the lower courts are divided on an issue. Here, both the 4th and 9th Circuit courts agreed to uphold district court rulings blocking the ban though they found different reasons to do so.

The 4th Circuit said Trump’s order discriminated against Muslims and violated the Establishment Clause of the First Amendment, which prohibits the government from prohibits the government from establishing a religion.

The 9th Circuit based its decision on immigration law. The court said Trump’s order failed to provide the required justification under the Immigration and Nationality Act for suspending the entry of more than 180 million people on the basis of nationality.

Though the law gives the president broad powers to control the entry of foreigners, the judges said the president’s authority is subject to certain statutory and constitutional restraints.

Hawaii’s district court ruling that was upheld went farther than the Maryland order affirmed by the 4th Circuit, stopping Trump from also suspending the entry of all refugees for 120 days and reducing the cap on the admission of refugees from 110,000 to 50,000 for the 2017 fiscal year.

Under the court's order, those provisions can now take effect, with an exception for refugees who have a bona fide relationship with a person or entity in the United States.

"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.

The government claims the 4th Circuit ruling created uncertainty about the president’s authority to combat risks of terrorism, while the 9th Circuit’s decision “threatens to hamstring the Executive in safeguarding the nation’s border.”