SCOTUS reinstates substantially all of Trump Travel Order
This is a huge victory for Trump on stay application, Court to hear full case in October.
[BREAKING – This post has been updated multiple times]
In a per curiam Order (full embed at bottom of post), the Supreme Court agreed to hear the Trump Travel Order cases, and also substantially lifted the injunctions, with the exception of people seeking admission who already have a bona fide connection to the U.S.
This represents a huge win for Trump. The key element of his Second Travel Order (the one at issue on appeal) was to exercise his constitutional and statutory power to exclude persons from the U.S. The lower courts effectively took that power away, and substituted their own judgments as to security threats. With a relatively narrow exception, that power has been reinstated to the presidency, pending a full decision on the merits of the case.
As to accepting the case the court wrote:
To begin, we grant both of the Government’s petitions for certiorari and consolidate the cases for argument. The Clerk is directed to set a briefing schedule that will permit the cases to be heard during the first session of October Term 2017.
The Court also substantially lifted the injunctions, except to persons who already have a bona fide connection to the U.S.:
We now turn to the preliminary injunctions barring enforcement of the §2(c) entry suspension. We grant the Government’s applications to stay the injunctions, to the extent the injunctions prevent enforcement of §2(c) with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States. We leave the injunctions entered by the lower courts in place with respect to respondents and those similarly situated, as specified in this opinion. See infra, at 11–12….
At the same time, the Government’s interest in enforcing §2(c), and the Executive’s authority to do so, are undoubtedly at their peak when there is no tie between the foreign national and the United States. Indeed, EO–2 itself distinguishes between foreign nationals who have some connection to this country, and foreign nationals who do not, by establishing a case-by-case waiver system primarily for the benefit of individuals in the former category. See, e.g., §§3(c)(i)–(vi). The interest in preserving national security is “an urgent objective of the highest order.” Holder v. Humanitarian Law Project, 561 U. S. 1, 28 (2010). To prevent the Government from pursuing that objective by enforcing §2(c) against foreign nationals unconnected to the United States would appreciably injure its interests, without alleviating obvious hardship to anyone else.
We accordingly grant the Government’s stay applications in part and narrow the scope of the injunctions as to §2(c). The injunctions remain in place only with respect to parties similarly situated to Doe, Dr. Elshikh, and Hawaii. In practical terms, this means that §2(c) may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of EO–2….
The Government’s application to stay the injunction with respect to §§6(a) and (b) is accordingly granted in part. Section 6(a) may not be enforced against an individual seeking admission as a refugee who can credibly claim a bona fide relationship with a person or entity in the United States. Nor may §6(b); that is, such a person may not be excluded pursuant to §6(b), even if the 50,000-
person cap has been reached or exceeded. As applied to all other individuals, the provisions may take effect.
Justice Thomas, joined by Justices Alito and Gorsuch, would have gone further, reinstating the Travel Order in its entirety:
I agree with the Court that the preliminary injunctions entered in these cases should be stayed, although I would stay them in full….
The Government has satisfied the standard for issuing a stay pending certiorari. We have, of course, decided to grant certiorari. See ante, at 8–9. And I agree with the Court’s implicit conclusion that the Government has made a strong showing that it is likely to succeed on the merits—that is, that the judgments below will be reversed. The Government has also established that failure to stay the injunctions will cause irreparable harm by interfering with its “compelling need to provide for the Nation’s security.” Ante, at 13. Finally, weighing the Government’s interest in preserving national security against the hardships caused to respondents by temporary denials of entry into the country, the balance of the equities favors the Government. I would thus grant the Government’s applications for a stay in their entirety….
Moreover, I fear that the Court’s remedy will prove unworkable. 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. See ante, at 11–12. 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 “simply to avoid §2(c)” of Executive Order No. 13780, ante, at 11, 12. And litigation of the factual and legal issues that are likely to arise will presumably be directed to the two District Courts whose initial orders in these cases this Court has now— unanimously—found sufficiently questionable to be stayed as to the vast majority of the people potentially affected.
So far, this is substantial vindication for Trump. And for me (!) who advised Trump never to abandon even the First Travel Order, President Trump must not back down on immigration Executive Order:
I have seen many analyses critical of the 9th Circuit ruling which urge the Trump administration to take a step back, to withdraw the current Executive Order and rewrite it to fit what is acceptable to the 9th Circuit. The Trump administration, according to some reports, is considering doing that.
That would be a grievous mistake.
The Executive Order, as the Trump administration has said it would be enforced (for example, excluding green card holders from its reach), is perfectly lawful and within the President’s power and authority. To accept the 9th Circuit ruling is to accept that the President does not have the powers vested in him by the Constitution and Congress.
This legal dispute no longer is just about the Executive Order. Democrats have made clear that they will fight in court over almost everything the Trump administration does. The 9th Circuit has opened the door to this tactic on an issue that goes to the core of presidential authority.
If the Courts are to designate themselves the functional directors of the Department of Homeland Security, then such mandate must come from the Supreme Court, not the 9th Circuit.
The White House now has weighed in:
Statement from @POTUS on Today's Unanimous Supreme Court Decision. pic.twitter.com/0TuHoRJzuT
— Kayleigh McEnany 45 Archived (@PressSec45) June 26, 2017
As to the issue of what “bona fide” means, Dan McLaughlin points to this language:
Supreme Court, writing unanimously in the travel ban case, is wise to how liberal activist groups operate pic.twitter.com/Nu97q4omkY
— Dan McLaughlin (@baseballcrank) June 26, 2017
I think it’s also important to point out that the Supreme Court Order does not mean that all persons with a bona fide connection must be admitted to the U.S., it’s just that they can’t be summarily excluded based on a country-wide prohibition.
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Supreme Court Order on Trump Travel Order – June 26, 2017 by Legal Insurrection on Scribd
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Comments
Oh, LOOK…!!!
The rule of law is not dead!
Sorry, crazies. No “civil war” today. I know. Sucks, but there you are.
Well obviously Vladimir Putin personally bribed every SCOTUS Justice who concurred in this one. Just wait, it’ll be on Morning Joe tomorrow.
The 90 day clock starts.
Even on CNN, bause of the limited time scope of Trump’s order (90 days), they fully expect the SCOTUS to declare the case “moot” when they take it up after the 90 day period has elapsed.
The 90 days was an arbitrarily chosen number. Let DJT amend the EO for 180, 360 days. Pick a number, any number.
Oops! Sorry about that! That’s 90 years, not days – just a little typo, I’m sure the Dems will understand…most of them can’t read anyway. That’s why they’re addicted to porn.
With the sense of fairness and respect for the law, the United States should designate Hawaii as the sole destination for any and all immigrants entering the United States. The ‘tolerant’ lefties will love this policy.
No boom today; boom tomorrow. There’s always a boom tomorrow.
https://www.youtube.com/watch?v=299knTdX-Wo
I doubt the Court was unaware of the possibility that there would be.
George Takei says “Oh My!”
Useless. It would a rare case indeed where a liberal judge could not certify a “bona fide” relation with someone in the US. E.g., “we corresponded about philosophical issues over the internet.”
It’s true that this is an invitation to allow people like the Tsarnev brothers to return after murder training, but those were known wolves. We can probably do something about situations like that.
Um…
The Boston bombers were naturalized citizens. Nothing whatsoever to do with the T-rump EO.
Disagree – the left wanted blanket approval of anyone, this puts everything on a case by case basis.
Also remember that this was never really about any individual cases, this was about the Left wanting to shout “TRUMP IS A RACIST EVEN SCOTUS SAYS SO!!” (oops they don’t)
watching CNN a bit – they’re almost as butthurt over this as they were over Tossoff losing.
AND, if I understand the ruling correctly, the main reason this was only a partial ruling was to accelerate the restoration of the POTUS’ constitutional authority while scheduling further deliberation on the fine points that may take more time until October. This was SCOTUS ruling as fast as they could on the obvious.
Agreed to both. However, the Tsarnev brothers were already here, went abroad for training, and came back. We were warned about them by the Russians when they came back, and we did nothing to deter them.
Under the stay, they would have been able to demonstrate a bona fide relationship to this country, and assuming they returned from one of the countries on the list, would be allowed in.
So, we still have a very dangerous class of people left uncovered by the stay.
With respect to the Tsarnaev brothers – it should be pointed out, as you say in your post, that our government had good, actionable warnings about them and did nothing.
As long as that kind of crap is going on, we’re going to be in big trouble no matter what kinds of rulings our judges make.
Don’t forget that the purpose was to evaluate the situation in the six countries and establish new vetting procedures.
So, it is feasible that part of the new process may be to deny re-entry to any person who left the US and returned to certain countries. Hopefully, new information such as intelligence reports, social media posts, etc can be used to determine if re-entry is to be approved.
Can you imagine the howls from certain people if the vetting procedure is determined that the foreign country cannot be trusted and all visas to visit the US is denied! And if you have a relative coming in under the special circumstances then they are tracked better once they are in the US.
Valerie (and the hatefilled morons who down-voted me on this issue)…
THEY WERE U.S. CITIZENS.
The EO could NEVER apply to them. Stop it!
You MIGHT not like it, but a U.S. citizen has a right to travel, and nobody can require them to obtain a FLUCKING VISA to come into their OWN FLUCKING COUNTRY.
Geeeeeeez.
You people…!!!
Stop it, Rags. Valerie raises a valid question, clearly not knowing the Tsarnaev brothers were U. S. citizens and thus not really great examples, but her point is valid.
We do need to be concerned about naturalized U. S. citizens who are or can become radicalized jihadis. What we cannot do, ever, is start down McCain’s path of revoking citizenship based on terrorist associations. The next Obama will see every right-leaning person as a terrorist; heck, the entire leftist regressive movement already does. Instead, we need to roll back Obama-era policies that did not allow federal law enforcement and national security agencies to monitor mosques, radicals, and others deemed potential threats by our and by foreign intel. We need our nat-sec and LEO’s to be able to do their jobs.
Stop WHAT, Fuzzy…???
Pointing out OBVIOUS FACTS…???
Applying the law to those facts, in the face of gob-smackingly stupid counterfactual comments?
Oh, and thanks for stating the obvious, but totally irrelevant.
It’s not irrelevant at all. She simply gave a poor example, but her underlying point that there are jihadi threats that are not covered by this EO because they are U. S. citizens, have a legit “connection” to the U.S., or whatever is still valid. The EO, of course, does not attempt to solve all jihadi-related nat-sec threats, but that doesn’t mean we can’t entertain others, does it?
And as an aside, these days, the “obvious” is not at all obvious to people. There are plenty of people, even commenters here on LI, who think revoking the citizenship of terrorists is a great plan.
BS, Fuzzy. She was wrong in her fundamental predicate. You don’t get ‘right’ from there.
Whatever…
Well, yeah, but . . . .
Upon actually reading the decision, I find that Justices Thomas, Alito, and Gorsuch predict just such a storm of litigation.
In any case, the decision explicitly includes, under “bona fide relations”, job offers, speaking engagements, and acceptance to schools in the US. Anybody willing to claim that there won’t suddenly be a massive upsurge in enrollments of foreign students throughout the US? Or that there will not be a sudden blossoming of for-profit schools whose sole purpose is bringing in such students?
“Or that there will not be a sudden blossoming of for-profit schools whose sole purpose is bringing in such students?”
The decision specifically pre-empted this.
Huh…
I know of nothing that would prevent someone admitted during this interregnum to be vetted once they are here, and tossed out for cause.
Do you?
Like that would ever happen. You and I may hope, but, I just can’t envision that happening.
So, your answer is “no”. There is no such impediment.
But you DO make the argument that the whole idea of “vetting” is just chin-music.
Odd…
Almost every legal mind of the highest caliber said that the injunction would be lifted and they were correct. If this had been allowed to stand the executive branch would have become subservient to lower federal courts and the activist thereof. I am not sure if this was just a procedural motion or one that was actually voted on by the justices. No matter, this was a Uuuuge win for Trump and the American justice system.
Winning! If it weren’t for the Republicans circling the wagons to protect the Democrats’ legacy, these victories would be coming in multiples EVERY day.
The interest in preservingnational security is “an urgent objective of the highest order.”
It will be hard for the Plaintiffs to over come this opinion.
I can look at the weather vane to see which way the wind is blowing as well as anyone else. The USSC allows the meat of DJT’s travel ban to go into effect. That’s a win in anyone’s book (though the left won’t admit it).
Well, could be worse, but still not terribly impressive.
The exception is arbitrary; nobody’s claims to a “bona-fide connection”, even if genuine, should override the Executive’s performance of his constitutional duties to enhance the security of the United States.
Also, the delay in actual resolution of the extents of the President’s authority and power to do his job—a delay until October at the earliest—will make it more difficult for the President to issue more EOs of this sort.
If you want the 99% victory NOW, or delay another four months for the 100% victory? We have now secured a major victory and the rest will be dealt with later. This doesn’t impede the power of the POTUS to do his job at all. It puts into place the meat of EOs he has already put in place.
The but obvious problem is that the EO which is causing all the excitement is pretty weak stuff. Temporary … 90 day … increased scrutiny … a pitifully tiny roster of countries, barely scratching the surface of the problem … Once the Courts stop dragging their feet about the President’s authority to do something effective—in place of mere tokenism—then he can do something which might actually address the problem effectively. Until the Courts can be brought around to some respect for this principle, Trump’s program is mired in limbo, and we’re supposed to accept form over substance. Again.
The vote was 9-0. The issues that will be debated in 90 days were itemized by Justice Thomas. I see no ambiguity about what this means going forward. (And sorry for again failing to control my too-sensitive mouse and clicking the thumbs down by accident. I wish they would fix that. Very bad site design.)
And sorry for again failing to control my too-sensitive mouse and clicking the thumbs down by accident
I work hard to earn those. We don’t want them awarded frivolously.
This decision is totally unworkable. Who is going to judge what ties to the country are strong enough? It’s pretty obvious that Trump will win this case when it’s heard in October. Either the President has this power already granted by Congress or he doesn’t. I can’t see even the liberal judges say he doesn’t have this authority.
Immigration has its own administrative law judges, who are quite capable of making the required determination (they do it every day).
Additionally, as I note above, there is no impediment to vetting anyone admitted under the exceptions, and tossing them out for cause…including lying about any part of their declarations to the Feds.
Justice Thomas is exactly correct, and we already know that all the progressives lawyers and judges will be citing “bona fide relation” for everyone.
I read somewhere that the list of countries on the “travel ban” has been reduced — that one of the countries on the list improved their record-keeping making it possible to properly vet travelers from that country.
I can’t figure out how to google that story, though. Does anyone know anything about that?
The country removed from the travel ban list was Iraq.
http://fox4kc.com/2017/03/06/watch-now-pres-trumps-key-leaders-explain-changes-to-travel-ban-executive-order/
Thanks!
The one good thing about this:
It rapidly makes clear the decisions against the E.O.s were pretty hollow, since it took SCOTUS no time at all to issue this.
Yet more evidence that Roberts is a judicial activist, and not a Textualist. Will people finally stop labelling him as a ‘conservative jurist’ for whatever that means.
Judicial activist?
Roberts is worse: he’s a coward.
Early Returns suggest that Gorsuch will be a far more reliable conservative vote than Roberts ever will be.
So, we have a case where the man appointed to an important post by the supposed True Conservative Bush, is in fact not nearly as conservative as the man appointed by the supposed Fake Conservative Trump.
It’s almost enough to make me question this whole true conservative / fake conservative paradigm, I tell ya.
GWBush is and was oilman first last and always –
if he could make money voting LGBTQ you better believe that he would – not a conservative in the least – just look how hw he did NOT attack the Saudis, who were the actual instigators of 9/11.
When Bush allowed the Saudis to leave after 911, he made his priorities pretty obvious.
As we’ve been told ad nauseum, Trump’s not a True Conservative™—and a damned good thing, too.
True Conservatives may rank among the worst poxes ever inflicted on American conservatism.
Bushes both of them were horrible when it came to supreme court appointments. Between them 2 good appointments (Alito and Thomas) one unbelievably horrible appointment (Souter) and one very bad lost opportunity (Roberts). The only thing you can count on with Roberts is that you can’t count on him.
Roberts is looking for ABA and Law Review glory, plus a little praise from the WP.
“ABA glory…”
It’s worth about the same as “MSNBC glory.” The ABA was hijacked by the left a long time ago.
This decision is only a partial decision and will likely be subject to change after a full hearing on the merits. The compromise reached here is unworkable, as noted by the partial dissent of Thomas, Alito and Gorsuch. The strong takeaway from this is the affirmation of the Presidential power to control immigration in accordance with existing statute. Also, the question of standing is addressed in the partial dissent and is likely to come up in the full hearing.
A good start.
“This decision is only a partial decision and will likely be subject to change after a full hearing on the merits.”
What makes you so sure there will ever be any such hearing?
Well, seeing as how the Court instructed the cleks to schedule a hearing on the merits for the first part of the October session of 2017, I think that it a good bet that such a hearing will occur.
I have no problem with this ruling exactly as written, provided that any cases regarding “who can credibly claim a bona fide relationship with a person or entity in the United States” be placed at the back of the immigration court queue where they belong.
The backlog is about three years, if I remember right.
Liberal calls for Gorsuch to recuse himself on account he was nominated by Trump — or something — to begin in 5… 4… 3… 2…
They were A-OK with Sotomayor and Kagan sitting on all cases against the Obama Administration, but they’ll want Gorsuch out of all cases against the Trump Administration (and out of the legacy cases against the Obama remnants).
Because TRUMP! — or something.
Wake me when Ginzburg recuses herself over every case involving Trump over her prejudicial and embarasing comments about him last year.
I am glad for the early victory but the wording “Bonafide Connection” is as ambiguous as the recent decision on open carry in San Diego where the SCOTUS declined to hear the case, and the 9th left the term “Good Cause” for the local police to decide what good cause means when deciding who can openly carry a weapon. We can only imagine a liberal’s view what good cause means! This bonafide connection will be challenged by every activist judge in America. I think that this will not be resolved until after October.
Crappy, loony Federal Judges hanging their heads. This is going to be 8 or 9 Justices siding with Trump. Only the Half-witted Latina is in doubt.
courts that continuously (9th circuit) need to be impeached and reconstituted with lawyers who actually know the LAW.
courts that continuously overturned (9th circuit) need to be impeached and reconstituted with lawyers who actually know the LAW.
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need an edit function besides preview to correct errors.
I used to be in favor of bring back judicial impeachment, but I’m not so sure any more. I can see some day the dems recovering some power, and they would not hesitate to impeach just about every conservative judge they could find. I dunno.
“I used to be in favor of bring back judicial impeachment…”
Since the last impeachment move in 2014, when did judicial impeachments go away…???
Jefferson noted impeachment of judges was “already” a mere scarecrow. It has hardly become more intimidating in the 175 or 200 years since.
“Only the Half-witted Latina is in doubt….”
Sotomayor isn’t that smart. You’ve greatly insulted half-witted Latinas everywhere.
In reading some of the earlier posts about SCOTUS, i am amazed/horrified how low our society has gone.
We no longer have an idea what constitutes ‘biblical morality’.
as a result, I-Slam is accepted as a ‘valid religion’ and torah true Judaism and NT true Christianity is seen as perversion.
we will not/can not survive as a society in this way.
The creator will not be mocked in this fashion. I very rarely write this way – but i fear for our kids future.
The last time the USA behaved like this was about 100 years ago and that resulted in the 2 world wars.
please give me hope that i am wrong.
A BIG thing everyone here is overlooking is that the Collectivist justices didn’t just give the “reasoning” of the lower courts short shrift…
they gave it no shrift at all. Which is all it deserved.
This is what we call a “bench-slap”.
How do you see the lower courts reacting this this response by SCOTUS, particularly if the travel ban expires before review?
I’d only be speculating, and without any data other than recent experience.
But we can play a little gaming of possibilities.
IMNHO, the very BEST thing the administration can do is get hustling to establish a good, workable, and tough system of vetting people from the affected countries BEFORE the October session of the Supremes. Where it’s found that is practically impossible (and it might), we have to have a set of well-articulated criteria to apply to applicants. Sessions needs to take the lead on this whole process, and get T-rump out of the limelight.
As I understand it, the process of vetting is itself not controversial. It was the idea of a “ban”. Which the EO never really contemplated at all. It was entirely a fabrication of the Collective. All that was in play was a hiatus to review the programs and possibilities.
So, conduct the review in the time before October, and get rational, defensible policies in place to give some assurance we are not admitting dangerous people into the country without an effective review. One of which can be “Nope. Sorry. We have no reliable information on you from wherever you are coming from”. Even where that’s true, the system does offer some room for an appeal to an exception.
The lower courts would have very little to say about that, and they’d know much better how the land lays WRT the Supremes.
That’s the best I’ve got on the spur of the moment…
That’s very good advice, I wish there was someone in charge who had the ability to carry it out. So much of the administration still seems to be either on autopilot or run by Obama holdovers.
Good points. Hopefully, the Administration has been working on the vetting criteria since the EOs were originally signed.
Another key point will be to have properly trained people in those offices vetting people from those countries. Having the criteria in place will be useless if the visa approvers are not on the same page as the Administration.
Therein, of course, lies the rub.
You can have an absolutely elegant body of law/policy/criteria that is functionally useless in the absence of application. So, we gotta have people and lots of them, along with the very best tools available, or all is for naught.
This leads to what engineers call a “rate problem”. As demand for visas rises, the demand for people to vet applicants rises, so one means of dealing effectively with the vetting requirement is to limit the demand. This is not an easy or simple proposition. We DO want people to come to the U.S., just as we want Americans to travel rather freely all over the globe. We benefit by the exchange, assuming everybody behaves.
I’m no legal scholar, but the per curium decision, where the liberals didn’t even offer any kind of dissent seems to be a good portent for the October hearing. Perhaps even Ginzburg and Santameyor realize that we can’t have the judiciary running the day to day activities of the executive branch in something they have constitutional purview (and historically wide latitude) over.
“I’m no legal scholar…”
You’re proving to be more of a legal scholar than most of the judges appointed by obama.
What I find to be the best part of all is that the decisions from the 9th Circuit, et al, used Trump’s statements while he was campaigning as prima facie evidence that the ban was racist.
Every Justice on the SCOTUS treated that claim as though it were too stupid to even bother mentioning. Which of course, it is.
where the liberals didn’t even offer any kind of dissent seems to be a good portent for the October hearing.
They may have just been caught by surprise. They really thought they had this clinched, much like they thought about the Wicked Witch’s inevitable coronation. If so, in three months they may be able to come up with more substantial objections than their weird blustering fantasies about America’s founding ideals.
Thank you, or for that matter Obama himself 🙂
Americans 1, terrorists (and those principally aligned including anti-native factions) 0… maybe 0.01
The bona-fide exception is legally problematic but practically a non-issue. First, you write up a ten page form and require notarized statements and a $500 checkto be attached. This is to apply for an exception. Now, it will take some department three months to check out the form and the statements and be assured that there is not some other reason to exclude the person. So what does an aggrieved party have to do if he is rejected. He can hire an attorney and go through the courts and this is done on an expensive, time-consuming case by case basis.
I worry about our judicial system where appeals court judges get slapped down 9 to zip. This is a case that was obvious and the decisions written by the lower courts and the appeals court weren’t law. They were simply judges playing to the left and ignoring their responsibilities.