Today the Supreme Court agreed to review rulings by two lower courts blocking the implementation of President Donald Trump’s March 6 executive order, popularly known as the “travel ban.” Citing national-security concerns, the order imposed a freeze on new visas from six Muslim-majority countries (Iran, Libya, Somalia, Sudan, Syria and Yemen). But the full U.S. Court of Appeals for the 4th Circuit had put the order on hold last month, concluding that – although it did not specifically say so – the order likely violated the Constitution because the president intended to discriminate against Muslim travelers. Earlier this month, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit also blocked the order, but on a different ground: It concluded that the order exceeds the authority that Congress has given the president to regulate immigration. The court’s announcement today means that the justices will review both of those decisions. The justices also granted the Trump administration’s request to allow the ban to go into effect, at least for would-be travelers who don’t already have some connection to the United States.
The announcement came in a brief, unsigned opinion issued by the justices when they took the bench this morning to release opinions in cases argued on the merits earlier this term. The court’s opinion focused primarily on the government’s request to reinstate the ban while the cases are before the Supreme Court. Emphasizing that the purpose of temporary relief like this is “to balance the equities as the litigation moves forward,” the court made clear that it had the authority to “tailor” its ruling so that it applied to some, but not all, of those affected.
That is precisely what it did. The lower courts had considered the hardships that the ban would create for the named plaintiffs in the case: two men with family members who want to come to the United States from the affected countries; and the state of Hawaii, whose state university had admitted students from those countries. But, the court explained today, the lower courts’ orders barring enforcement of the ban “reach much further than that,” because they also apply to people living overseas “who have no connection to the United States at all.” When those people are unable to come to the United States, the court reasoned, their constitutional rights are not violated – because they have no right to come to the United States – and their exclusion from the country does not harm anyone in the United States.
The justices therefore upheld the lower courts’ orders blocking enforcement of the ban with regard to the named plaintiffs and others like them – people who “have a credible claim” of a genuine relationship with someone or an institution in the United States. When that relationship is with an individual, the court made clear, it must be a close family member. And when the relationship is with an institution, the relationship must also be a genuine one, rather than one created just to get around the travel ban.
Justice Clarence Thomas filed a separate opinion, which was joined by Justices Samuel Alito and Neil Gorsuch. They would have allowed the government to reinstate the ban for all travelers from the six affected countries, regardless of any personal connection that those travelers might have with the United States. Thomas complained that today’s order could prove “unworkable,” requiring government officials to try to figure out whether would-be travelers have enough of an connection to the United States to come here, and could “invite a flood of litigation.”
The court combined the two cases for oral argument, which will take place in October of this year. The justices also asked the two sides to address a new question: Whether the challenges to the provision suspending entry for travelers from the six Muslim-majority countries became moot – that is, no longer an ongoing dispute – on June 14, 2017. In a filing on June 12, the challengers in the 4th Circuit case had argued that the provision would expire on that day: They reasoned that the March 6 order made clear that the bar would apply for 90 days from March 16, when the order became effective, and that 90-day period ended on June 14. But on June 14, Trump amended the March 6 order to specify that the bar would go into effect when the lower-court orders blocking its implementation were lifted. That change, the government argued, meant that the case was still alive, but the Supreme Court will now have the final say.