June 26th, 2017

SCOTUS temporarily lifts most of the ban on Trump’s travel ban

Well, well, well:

The Supreme Court agreed Monday to let portions of President Donald Trump’s travel ban executive order take effect, a partial victory for the White House that could come as a relief after a string of lower court defeats.

Yes, it’s a “partial” victory, but it involves a mighty big part. The actions of the lower courts in taking matters into their own hands and overruling a sitting president on his foreign policy decisions—decisions he clearly has a right to make—have been mostly stopped for now because the injunctions remain in effect for only a limited number of “foreigners with clear ties to individuals, businesses or organizations in the United States.”

Of course, those ties are left to be defined in more detail, and to learn about how that might occur you can go to William Jacobsen at Legal Insurrection, whose entire post I suggest you read.

What’s more, by limiting the scope of the injunction placed on the travel ban by the lower courts, SCOTUS has also limited their attempt to give a nationwide spin to cases in which only certain plaintiffs were involved. Now, instead of applying to anyone from these countries who might want to come here (which was the basic scope of the lower courts’ rulings), SCOTUS has said that “The injunctions remain in place only with respect to parties similarly situated to Doe, Dr. Elshikh, and Hawaii.”

One of the most important parts of the SCOTUS ruling is the fact that the decision was unanimous. This actually stuns and heartens me. I felt that, in a sane world, it would be and should be unanimous. But I didn’t expect it to be, because legal reasoning just doesn’t go that way a great deal of the time, and politics seems often to be the single most important factor in issuing judicial decisions. But apparently at least some of the lower courts’ egregious overreach was a bridge too far even for the most liberal of the SCOTUS justices.

The full case will be heard in October (although it might be moot by then). Despite the good news today, I make no predictions, due to all of the reasons that can be found here as well as the inherent unpredictability and politicization of the thing.

[ADDENDUM: More here from Powerline’s Paul Mirengoff on two other SCOTUS decisions, concerning religious liberty:

…[T]he Court ruled by a vote of 7-2 that religious institutions may not be excluded from state programs with a secular intent — in this case, making playgrounds safer. Chief Justice Roberts, writing for the majority said, “The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution . . . and cannot stand.” Justices Ginsburg and Sotomayor dissented.

…[T]he Court agreed to review next term a decision holding that a Denver baker unlawfully discriminated against a gay couple by refusing to sell them a wedding cake. The lower courts ruled that the baker violated Colorado’s public accommodations law, which prohibits refusing service to customers based on factors such as race, sex, marital status or sexual orientation.

Note that in the first case only two liberal judges dissented. The second case has not been heard yet.

Mirengoff adds, on the topic of the travel ban injunction:

The Court’s decision to allow at least a limited version of the order to remain in place seems, at least on first impression, to entail a rejection of the ridiculous and pernicious rationale employed by the Fourth Circuit to strike down the ban. That court, like several district courts, relied on statements made by candidate Trump to find that the travel ban is intended to discriminate on the basis of religion. We discussed this argument here.

The Ninth Circuit struck down the ban for a different reason. Usurping the role of the president, it found that the government didn’t establish its case that the ban is justified by national security concerns.

On first impression, it seems to me that the Supreme Court, like the Ninth Circuit, is prepared to usurp the role of the executive — hence the exception it pasted on to the president’s executive order — but disagreed to some extent with the appeals court’s second-guessing, or found that its second-guessing didn’t justify the full scope of its order.

So which is it? I agree that there’s an inherent contradiction there that makes the future hard to read. If the full case is heard in October, will the Court decide based on “a rejection of the ridiculous and pernicious rationale employed by the Fourth Circuit”? Or will it decide based on the idea that it’s okay for the courts to “usurp the role of the executive” in these matters? There are plenty of other issues, as well, including whether a court should take into account a president’s statements while a candidate rather than the way an executive order is later written and how it would actually take effect.

It seems to me that some of the contradiction can be explained by the fact that today’s ruling involves a temporary injunction, whether to lift it or whether to keep it. October’s ruling would involve something much more. If I recall my law correctly (and excuse me; it’s been a while), the reasoning appropriate to the first is not always the same as the reasoning appropriate to the second.]

14 Responses to “SCOTUS temporarily lifts most of the ban on Trump’s travel ban”

  1. Ann Says:

    The top headlines right now on the Google News page:

    New York Times‎: Supreme Court to Hear Travel Ban Case
    The Hill: Trump gets green light for partial travel ban
    Washington Post: Supreme Court issues mixed ruling on Trump’s travel ban

    You’ve gotta love how the NY Times headline gives no hint that the Court backed any of the travel ban at all.

  2. Yancey Ward Says:

    I think Roberts made a deal with the 4 liberals to get them on board with the following principles:

    1. The president does have the constitutional power to do what he did in regards to putting a pause on entry from certain countries.

    2. His campaign rhetoric cannot be used as a factor in whether making a decision on whether or not the order is legally proper.

    3. Non-US residents have no rights to entry.

    In exchange for that, the specific litigants didn’t have their relief stayed. If the 4 liberals hadn’t joined the main order, I think Roberts and the other 4 conservatives were prepared to stay the injunctions entirely with the final decision probably coming before November.

    What is going to happen is that applicants for visas from these six countries are going to have to prove who they are and their relation to the people they are visiting. I am guessing this is going to be limited to spouses, parents, children, and siblings of legal US residents, and if you can’t prove that with actual documentation, you will have a long wait for the visa. I do expect the same lower courts to try to issue further injunctions, but I Trump will now ignore them as illegitimate.

  3. parker Says:

    The 9-0 decision is a bit surprising given Ginsburg’s previous (and unwise) statements about Trump. The 7-2 decisions is also surprising IMO.

  4. Geoffrey Britain Says:

    “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 court wrote

    So a Muslim Aunt can claim ‘hardship’ (emotional distress) if her nephew is denied entrance? And her hardship grants the nephew a legal claim to refugee status?

    A foreign citizen from one of the countries on the travel ban can claim legal refugee status if they’ve been accepted at an American university?

    How is this NOT creating law?

    “In his opinion, Thomas criticized the majority for the compromise nature of Monday’s ruling, indicating he would have allowed the order to be enforced in full. Thomas said he feared “the Court’s remedy” would inspire a flood of new litigation.”

    Oh the Left won’t do that! They’d never engage in lawfare. sarc off

    The three leftists joined in rendering a unanimous decision because it offers the left an escape valve through which they can throw more sand in the justice system’s gears.

  5. Geoffrey Britain Says:

    In his written opinion, Justice Thomas firmly put his finger on the flaws in this ruling. Justices Alito and Gorsuch concurred with Justice Thomas…

    “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.”

  6. Roy Lofquist Says:

    The ruling is a harbinger. The arguments for the stay were heard less than a month ago. There wasn’t even time to refill the inkwells. The court, institutionally, does not act precipitously.

    The practical effect of the ruling is a full repudiation of both the 4th and the 9th circuits. It places the burden of proof on the individual petitioner not only to prove merit but to establish standing.

    It puzzled me as to why the administration did not raise the standings issue in the lower courts. I now believe that Trump wanted the issue dead and buried as soon as possible in the most definitive way. Now, no judge in the land is going to go anywhere near the land mine of messing with a 9-0 decided with such dispatch. I think that in a broader sense it also signals that SCOTUS is taking a dim view of lawfare as a political tactic.

    Was this an audacious move by Trump? You betcha.

  7. AesopFan Says:

    “The Audacity of Trump” – catchy book title.
    Bet it would sell millions.

  8. Yancey Ward Says:


    That is why I think Roberts gave the liberal wing something to come away with- he wanted the order to be per curiam precisely as a slap down of the appeals courts. He is hoping, I think, to stop the injunction fest in its tracks. The court can enforce this by summarily lifting any further injunctions, but I don’t think Roberts wants to have to do this. I don’t think he will be successful, however.

  9. Steve57 Says:

    I expect this case to be moot by October. It’s going to be the follow on cases that will be interesting as if the Trump administration is at all competent it will have to conclude that individuals from certain countries can not be effectively vetted at all, and therefore should be permanently barred.

    For instance, how can the US vet anyone from Iran? We don’t have an embassy or consulate in Iran as we don’t have diplomatic relations. On top of that Iran is a state sponsor of terrorism. I can provide the documentation, if anyone wishes, but in this off-the-cuff comment I’ll simply note that during the Obama era the Obama administration (to their credit; I can cite things I should credit the Obama administration for on one hand) thwarted an Iranian effort to assassinate the Saudi ambassador. It involved at least one American citizen of Iranian descent and another Iranian who was a foreign national. Moreover they intended to plant the bomb while the Saudi ambassador was dining out at a popular, crowded Washington D.C. cafe in order to kill as many Americans as possible.

    I won’t go into the other five nations effected by the travel ban, a toxic cocktail of failed states and state sponsors of terrorism. Suffice to say there is a reason the Constitution makes the executive, not the judiciary, responsible for national defense.

  10. Roy Lofquist Says:


    Perhaps he threw the girls a bone to get the per curiam. This pushes the mess back to December or January when it may become moot. This is the best the Liberals can hope for as they certainly don’t want SCOTUS to formally affirm the president’s plenary authority.

  11. Yankee Says:

    This is a good sign, but it’s just a start. This preliminary 9-0 decision came about because of just how BAD the other lower-court rulings were. Yet after reading the Left’s reactions to this, it’s clear from their comments that they will NEVER be able to accept even the smallest of restrictions on immigration, even as terrorist attacks were occurring in other countries as the lower courts made their rulings. If the Left had their way, they would create a Constitutional right to immigrate.

  12. expat Says:

    Conservatives in general failed on this whole issue. The left and the media constantly were allowed to use the term “Muslim majority countries” and get away with it. There should have been constant pushback saying that these were failed states that our country could not work with to reliably vet who they were sending to us. When you hear about factions in these countries having masses of blank documents that they could give out to terrorists, can we really count on information that comes from them.

    The media are still using that Muslim majority crap in reporting the SC decision. It is as if CAIR controls the media.

  13. F Says:

    I have to agree with Geoffrey Britain above: allowing the “loophole” of consanguinity to remain is creative law. And in countries with strong tribal roots and poor record keeping, proving one is a relative will be easy — and abused frequently.

    This is not a perfect ruling, and the results will not be everything we could have hoped for, but it is a fitting and proper rebuke to the lower courts who relied on Trump’s campaign rhetoric to delay implementation of his effort to limit Obama’s porous borders policy.

    This is an important ruling not for what it accomplished, but for what it signals to the lower courts.

  14. Conrad O'Connor Says:

    I guess I disagree with pretty much all the commenters on this one: despite the 9-0 vote, this ruling seems to me to be a complete loss for Trump. The Robert’s created “bona-fide relationship” loophole pretty much guts the ban. All the liberal groups are crowing that practically anyone they wanted to get into the country will be able to come.

    Moreover, as Andy McCarthy noted, the Court actually held that the President, despite acting on national security and with a clear statutory grant of authority, is powerless to even inconvenience foreigners who want to travel to the U.S. to visit relatives, start jobs or go to school. That is mind-boggling.

    In addition, I think it is notable that it was the three conservatives, and not the liberals, who dissented; clearly Roberts and Kennedy have sincere doubts about the President’s ability to inconvenience, much less bar, foreigners. Combined with the Court’s admonition that the Administration get cracking and roll out its enhanced vetting procedures pronto, this seems a not-to-subtle signal to Trump that he make sure the ban is mooted by October because he won’t like the outcome if they adjudicate the merits.

    Finally, I don’t understand the notion that the Fourth and Ninth circuits were somehow slapped down by this. Does anyone think they care about that? They wear Supreme Court repudiation as a badge of honor; none of them are going to get demoted or fired or take a pay cut no matter how many times they get overturned. The Supreme Court could have (and in fact, under the rules applicable to justiciating injunctions, should have) addressed the circuit courts’ reasoning under an analysis of the likelihood of success on the merits, but it didn’t. If the Court wanted to chasten the circuit courts that’s where it would have done so — but it declined to do so.

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.

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