The Jury Talks Back

6/26/2017

Supreme Court Allows Most Of Trump Administration Travel Ban

Filed under: Uncategorized — Dana @ 8:00 am

[guest post by Dana]

Giving the Trump administration some victory after the administration’s temporary travel ban was held up in lower courts, the Supreme Court announced today that the majority of the administration’s temporary travel ban can go into effect:

The Supreme Court is allowing to go into effect the executive order’s temporary ban on entry into the U.S. of citizens of six Muslim-majority nations, but with an exception for people with bona fide connections to the United States. That includes foreign nationals with familial connections in the U.S., students who have been already admitted into an American university, or workers with existing job offers in the U.S.

For people with these bona fide connections, the injunctions put in place by the lower courts are upheld and these individuals will not be banned under the executive order from coming into the U.S.

But anyone else from the six listed countries — Iran, Libya, Somalia, Sudan, Syria and Yemen — and refugees who do not have bona fide connections to the U.S. will be subject to the temporary ban on entry into the United States.

The newly revised travel ban can go partly into effect this week. Arguments are set to be heard in October, which will be past the 90-day review period.

This is interesting:

Notably absent from the court’s decision is any analysis of Trump’s campaign statements. Moreover, the only dissenters from the opinion (justices Gorsuch, Alito, and Thomas) wanted the injunctions vacated in their entirety. They are correct that the court’s ruling will invite further litigation as litigants test the boundaries of the “bona fide relationships,” but the difference between the dissenters and the six remaining justices was only over the proper extent of Trump’s legal victory. For now, the constitutional and statutory primacy of the executive and legislative branches over national security and immigration has been restored.

The judges in the courts below have been celebrated as heroic resistance figures. Yet now even the Supreme Court’s most liberal justices have rejected the lower courts’ overreach.

President Trump released a statement regarding the court’s decision:

“Today’s unanimous Supreme Court decision is a clear victory for our national security,” he said in a statement.

“Today’s ruling allows me to use an important tool for protecting our nation’s homeland,” he added. “I am also particularly gratified that the Supreme Court’s decision was 9-0.”

–Dana

25 Comments »

  1. Good, other than the injunction that SCOTUS remained in place the rest of the ban is nothing more than a rehash of bans made by previous Presidents, including Obama.

    Comment by Sean — 6/26/2017 @ 8:48 am

  2. I thought that the Supreme Court would not permit these extraordinarily broad injunctions against the executive’s immigration discretion to stand.

    I must admit that I did not expect so much of the injunctions to be swept away. And I’m nothing short of astonished at the fact that this result had so much support among the entire court.

    Comment by SPQR — 6/26/2017 @ 9:46 am

  3. In theoretical terms, maybe most of the injunction(s) is swept away. In practical terms they remains.

    It seems obvious to me that this was done on the basis of standing, and the injunctions remain in the case of anyone for whom someone would have standing to sue, and that’s most of the people with visas from those countries. For the most part the only exceptions are refugees with no prior connection to the United States.

    Comment by Sammy Finkelman — 6/26/2017 @ 10:45 am

  4. Sammy Finkelman, the other way ’round. In practical terms, the injunction is swept away. The various state Attorneys General are not going to litigate individual refugees’ claims.

    Comment by SPQR — 6/26/2017 @ 12:54 pm

  5. I think immigrants banned under this Order will file suit. If the Guantanamo cases are any indication, there will be many attorneys willing to take those cases pro bono.

    Comment by DRJ — 6/28/2017 @ 5:33 am

  6. As I understand it, this Order only bans immigrants from specific countries who have no ties to the US. It’s not clear what that means but I think it means they have never been here, have no immediate or extended family here, and have no sponsors here (including friends, academic sponsors, or invitations from academic institutions). If so, this might be a small number of people — it might just apply to refugees who have no friends or family in America.

    I doubt it was that hard for the Court to agree on banning those immigrants, but I’m not sure what the logic is. Is it because they don’t have any rights that are protected by American laws and statutes, so the President’s national security powers are at their apex?

    Comment by DRJ — 6/28/2017 @ 5:39 am

  7. DRJ, I think that the logic was a figleaf compromise to narrow the injunction rather than completely void it. And the only way to narrow it was to narrow to the extent of the actual situation of the individual plaintiffs.

    Comment by SPQR — 6/28/2017 @ 9:21 am

  8. And I would be very surprised to find any attorneys willing to litigate the scope of the “bona dude connections” to the US for the duration of a few months of the current stay. Because prevailing in one case would not even merit a brief mention in the news. Politically meaningless.

    Comment by SPQR — 6/28/2017 @ 9:24 am

  9. Maybe so but it sounds like there may be some lawsuits, depending on how the Administration defines a “bona fide relationship.” Where did that come from? It seems like the Supreme Court thinks it can write immigration law as long as it is only temporary.

    Comment by DRJ — 6/28/2017 @ 4:52 pm

  10. DRJ, well the per curiam seemed to think that they were taking that from the description of the individual plaintiffs.

    The NYT piece is pretty vague on this “flood” of litigation. I would be surprised, as it seems impractical.

    Comment by SPQR — 6/28/2017 @ 5:42 pm

  11. Courts aren’t supposed to make up terms and definitions when statutes are involved. What happened to interpreting statutory language? I don’t know much about immigration law but decisions like this are (pardon the pun) completely foreign to me.

    Comment by DRJ — 6/28/2017 @ 8:16 pm

  12. Well, I think the argument is that they are not interpreting statutory language yet. They are narrowing the scope of an injunction against an Executive Order.

    Comment by SPQR — 6/28/2017 @ 8:20 pm

  13. Seriously we have ceded the amendment power to the courts, in referendum as well as statutes

    Comment by narciso — 6/28/2017 @ 8:22 pm

  14. Injunctions mandate or restrain action according to the terms of an agreement or a specific law. I can understand how a court could get creative in enforcing or enjoining a contractual agreement. However, when the issue involves a statute, how can the courts substitute their own words and use them instead of what’s actually in the statute?

    Comment by DRJ — 6/28/2017 @ 8:35 pm

  15. Sterns argument that you have to get all the way to the supreme and this stay is cinsixered a victory, while we wait whether Kennedy will flip a coin. Or John Roberts decodes to be ‘on the right side of history’ is crazy

    Comment by narciso — 6/28/2017 @ 8:43 pm

  16. Any questions drj
    http://www.washingtontimes.com/news/2017/jun/28/donald-trumps-immigration-plans-rejected-by-obama-

    Comment by narciso — 6/29/2017 @ 5:46 am

  17. No. Thank you for showing it to me.

    Comment by DRJ — 6/29/2017 @ 6:04 am

  18. Hawaii has already sued to clarify the meaning of the Court’s words, and Trump has already changed his mind about who can come to America and who can’t. Is he ever going to learn to think about and analyze his decisions before implementing them?

    Comment by DRJ — 6/29/2017 @ 6:01 pm

  19. Their concern is not about grand children or wives or anything of the sort

    https://www.thesun.co.uk/news/3910075/hate-preacher-tarik-chadlioui-pictured-preaching-kids-swings-birmingham/

    Comment by narciso — 6/29/2017 @ 7:30 pm

  20. The government promised that this time the travel rules will be implemented in “an orderly fashion” and by keeping people informed. The problem is it isn’t orderly to inform people that you are changing the rules after just one day.

    My gut says Trump delegates everything and then makes changes after the programs are rolled out. Either he’s too busy tweeting and doing media, or his ADHD prevents him from thinking about programs until they’ve already started. He doesn’t like details but the way to make things work is in the details.

    Comment by DRJ — 6/30/2017 @ 5:49 am

  21. Implicit in that statement is that the first travel ban wasn’t orderly and people weren’t informed. We all know that but it’s nice to see the Administration acknowledge it.

    Comment by DRJ — 6/30/2017 @ 5:51 am

  22. http://legalinsurrection.com/2017/07/unlikely-lower-courts-learned-a-lesson-from-scotus-slap-down-on-trump-travel-order

    They have an objective no matter the consequences

    Comment by narciso — 7/1/2017 @ 7:43 am

  23. What lesson should the courts have learned, narciso? What instructions did the Supreme Court give them, other than some parts of the injunctions are allowed and some are not allowed?

    Or are you saying courts should do whatever a President wants, or whatever the President’s favorite media says he wants?

    Comment by DRJ — 7/1/2017 @ 2:02 pm

  24. how about the read the law, not mindread the candidate,

    Comment by narciso — 7/2/2017 @ 4:55 pm

  25. Maybe someone learned a lesson:

    http://www.nbcnews.com/news/us-news/federal-judge-denies-hawaii-s-motion-trump-s-travel-ban-n780366

    Comment by SPQR — 7/6/2017 @ 6:53 pm

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