At least for now, the federal government will be able to rely on President Donald Trump’s March 6 executive order, often known as the “travel ban,” to bar roughly 24,000 refugees from entering the country. In late June, the Supreme Court allowed most of the order – which froze the issuance of visas for travelers from six Muslim-majority countries and suspended travel by refugees into the United States – to go into effect. But it did not disturb the part of the lower-court rulings that prohibited the government from enforcing the ban with regard to the named plaintiffs in the case and other foreign nationals who have a “credible claim of a bona fide relationship with a person or entity in the United States.” Today the justices blocked a later ruling by the U.S. Court of Appeals for the 9th Circuit that interpreted the category of refugees who are eligible to enter the country more expansively than the government would have liked. For the foreseeable future, and possibly until the Supreme Court can rule on the broader dispute, refugees will not be exempt from the travel ban if their only connection with the United States is an agreement between the federal government and a refugee resettlement agency for the agency to provide the refugees with assistance after their arrival in the United States.
Tonight’s order capped off a flurry of filings that began yesterday, when the Trump administration asked the justices to put the 9th Circuit’s ruling on hold. In a brief submitted by Acting Solicitor General Jeffrey Wall, the government depicted the lower court’s interpretation as “deeply flawed,” and it complained that that the ruling “would as a practical matter render” the Supreme Court’s late June order on refugees “a dead letter” because almost all refugees are the subject of such an agreement.
Justice Anthony Kennedy, who handles emergency appeals from the 9th Circuit, moved quickly: He stayed the appellate court’s order, which was scheduled to go into effect today, and ordered the challengers to respond in less than 24 hours. The challengers, led by the state of Hawaii, pushed back, telling the justices that their intervention was not warranted because the 9th Circuit’s determination was both correct and “highly fact-intensive.”
Kennedy referred the government’s request to the full court, which decided to step in. In a one-sentence order, the justices announced that the 9th Circuit’s order, at least with regard to refugees covered by a formal agreement between the government and a resettlement agency, is stayed “pending further order of this Court.” With oral argument in the case scheduled for October 10, that language would at least suggest that this part of the ban will remain in place until the justices rule on the broader challenge, but litigation in this case has, at least up to now, proven to be anything but predictable.
