By Stephen Dinan
June 27, 2017
The Supreme Court revived President Trump’s extreme vetting travel ban Monday, ruling that much of it can go into effect — and along the way delivering an implicit rebuke to the army of lower-court judges who blasted the president as anti-Muslim.
In a unanimous unsigned ruling, the justices said the president has important national security powers that the courts must respect and ruled that he likely has the power to deny entry to broad categories of would-be visitors and immigrants.
But the justices said those who already have a connection to the U.S. — either a job offer, an admission to an educational program or a close family connection — will be exempted from the 90-day ban on travel from six countries as well as the 120-day pause on refugees.
Minutes after the ruling, both sides were fighting over what that meant.
The president said his plans will “become largely effective” and called the ruling “a clear victory for our national security.”
“My number one responsibility as Commander in Chief is to keep the American people safe,” he said in a statement. “Today’s ruling allows me to use an important tool for protecting our Nation’s homeland. I am also particularly gratified that the Supreme Court’s decision was 9-0.”
Immigrant rights groups, meanwhile, were divided.
Some took an optimistic approach, saying approval of the exemptions will prevent few visitors from entering the U.S. under either the travel ban or the refugee pause. Others were outraged that the court gave an imprimatur to any of the president’s policy.
The Homeland Security Department said it will soon issue guidance about how it will carry out the court’s directives.
Advocacy groups said they will be watching closely and will be prepared to file lawsuits if they think the government is refusing entry to deserving visitors, refugees and immigrants.
“This order allows only a narrow sliver of the ban to go forward. We will stop any attempt by the Trump administration to go further,” said Omar C. Jadwat, director of the Immigrant Rights Project at the American Civil Liberties Union.
The court has set oral arguments on the full case for October, when the next term begins.
But all the justices Monday signaled a reluctance to follow the lead of several lower courts, which said Mr. Trump’s campaign rhetoric regarding Muslims poisoned his executive orders.
During the presidential campaign, Mr. Trump proposed a full ban on admitting any Muslims to the U.S. In January, after taking office, he issued an executive order that imposed a 120-day pause on all new refugees, dropped the annual ceiling of refugees to 50,000 — down from the 110,000 that President Obama had set, and called for a 90-day halt in admissions from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.
Those seven countries — all predominantly Muslim — had been first identified by Congress and Mr. Obama as so terror-prone and dangerous that their citizens needed extra vetting.
After courts ruled against the January executive order, Mr. Trump issued a revised order in March removing Iraq from the targeted countries and allowing waivers that granted admission to people who the government deemed already had connections to the U.S., such as an approved visa or family living in the country.
Some legal analysts said the Supreme Court ruling did little more than codify that latest policy.
“An American individual or entity that has a bona fide relationship with a particular person seeking to enter the country as a refugee can legitimately claim concrete hardship if that person is excluded,” the justices said in the unsigned opinion. “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.”
Three members of the court — Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — issued their own opinion saying they would have gone further and upheld the president’s entire policy.
“I fear that the Court’s remedy will prove unworkable,” said Justice Thomas, writing for the dissenters. He said the decision creates a nightmare for the administration, which must come up with definitions of what constitutes “sufficient connection.”
The court also created an exemption to Mr. Trump’s 50,000-refugee cap, saying that anyone already in the pipeline with close connections to the U.S. must be admitted — a striking move that garnered little explanation in the 13-page ruling.
Some advocacy groups argued that meant no refugees will be blocked because of the ban, because everyone in the pipeline already has ties to the U.S. by dint of the fact that a resettlement agency in the U.S. is working on their case.
Other groups feared that some refugees will be left on the outside and stranded in dangerous conditions.
Those future fights aside, the ruling is the first major legal victory for Mr. Trump, who had been blasted by lower courts — chiefly Democratic-appointed judges — for showing “animus” to Muslims and for failing to justify his national security concerns.
The justices, though, said the president deserves deference when acting on national security concerns in immigration matters, where Congress has given the executive branch significant leeway.
“The Supreme Court did what the lower court judges would not: treat President Trump like any other president with the ‘presumption of regularity,’” Josh Blackman, associate professor at South Texas College of Law in Houston, wrote on his blog. “The justices did not delve into the president’s Twitter account, nor did they parse his campaign statements.”
The justices did, however, signal that they expect Mr. Trump to use the reprieve to quickly figure out and put into place new vetting policies — which was the point of the temporary pauses in the first place, according to the administration.
“Given the Government’s representations in this litigation concerning the resources required to complete the 20-day review, we fully expect that the relief we grant today will permit the Executive to conclude its internal work and provide adequate notice to foreign governments” within the time frame laid out by Mr. Trump, the justices said.
That could make much of the case moot by October, when the next session of the court begins.
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