U.S. Supreme Court - The FindLaw U.S. Supreme Court Opinion Summaries Blog

Travel Ban Approved Against Some With No 'Bona Fide' Ties to U.S.

Reversing two appellate courts, the U.S. Supreme Court approved part of the President's travel ban against nationals from six Muslim nations and refugees.

The court said the President's executive order may be enforced against those people who have no bode fide connections in the United States. Those who already have families, work, or school in the county may continue to enter pending a hearing next session in Trump v. International Refugee Assistance Project.

Executive Order 2

The court focused its ruling on Executive Order 2, which suspends for 90 days nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen. Section 2(c) says the pause is necessary "to ensure that dangerous individuals do not enter the United States while the Executive is working to establish "adequate standards ... to prevent infiltration by foreign terrorists."

"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," the court said in the unsigned opinion.

No "Relevant Hardship"

Acting on a shifting ground of court and government orders, the Supreme Court addressed issues raised from the courts of appeal in the U.S. Fourth Circuit and the U.S. Ninth Circuit. In the Fourth Circuit, the appeals court affirmed injunctions against the travel ban on religious discrimination grounds. The Ninth Circuit had affirmed, in part, injunctions based on the Immigration and Nationality Act.

In reversing both circuit courts and the trial courts below, the Supreme Court reviewed the injunctions by balancing the equities between the government and the foreign nationals. The court said the equities favored those nationals who already had connections in the United States, but not those who had no bona fide relationship in the country.

"Denying entry to such a foreign national does not burden any American party by reason of that party's relationship with the foreign national," the court said. "And the courts below did not conclude that exclusion in such circumstances would impose any legally relevant hardship on the foreign national himself."

The justices noted the executive order has always been temporary, providing the government 90 days to review the ban against the specified countries and 120 days for the ban against refugees. Trump said last week that the ban would go into effect 72 hours after court approval.

October Surprise

Like the election last year, the court's October session may produce surprises. Aside from the rumored retirement of Justice Anthony Kennedy, a conservative core emerged in the decision on the travel ban.

Justices Clarence Thomas, Samuel Alito, Jr., and Neil Gorsuch concurred but said they would have approved the entire travel ban without exceptions. They called the decision a "compromise."

"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," Thomas wrote.

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