Supreme Court agrees to hear arguments on legality of controversial order in the fall after lifting significant elements of lower court orders to block ban
The US Supreme Court handed a partial victory to the Trump administration on Monday as it lifted significant elements of lower court orders blocking the president’s controversial travel ban targeting visa applicants from six Muslim-majority countries.
The nation’s highest court said the 90-day ban on visitors from Iran, Libya, Somalia, Sudan, Syria and Yemen, along with a 120-day suspension of the US refugee resettlement program, could be enforced against those who lack a “credible claim of a bona fide relationship with a person or entity in the United States”.
The ruling now paves the way for parts of the ban to come into effect over the summer as experts say it could lead to more scenes of chaos at airports around the country amid confusion around precisely what qualifies as a “bona fide relationship” with the US.
The court also agreed to hear arguments on the legality of Trump’s controversial order in the autumn, potentially setting up a major test of Trump’s executive authority later in the year.
The decision was immediately seized on by the president as a “clear victory for our national security”. Trump said in a statement the ruling would allow the ban “to become largely effective” arguing the presidential order was “an important tool for protecting our Nation’s homeland.”
“As president, I cannot allow people into our country who want to do us harm. I want people who can love the United States and all of its citizens, and who will be hardworking and productive,” Trump said.
The administration has not produced detailed and specific evidence on the national security threats posed by visitors from the six countries and refugees targeted in the order, despite requests made during continued litigation against the order. Instead, the government has relied on broad descriptions of the targeted countries contained in the March executive order.
On Monday, the state department confirmed that the order would be implemented within 72 hours.
“We will keep those traveling to the United States and partners in the travel industry informed as we implement the order in a professional, organized, and timely way,” said Heather Nauert, a state department spokeswoman.
She added that the department would provide further details on the manner of implementation at a later date after consultation with other federal agencies involved in carrying out Trump’s order.
A number of high profile Democrats and migrant rights advocates vowed to continue fighting against the ban.
Tom Perez, chair of the Democratic National Committee, said Trump’s order remained “an unconstitutional and un-American assault on our country’s religious freedom”.
“Democrats will continue to fight this hatred every step of the way,” he said.
The ruling will nonetheless be seen as a blow to civil rights groups and a coalition of Democratic states, including New York, Hawaii and Washington that brought the cases against Trump’s second order and had enjoyed a string of victories in the lower courts.
Much of Trump’s executive order, a revised version of a first travel ban that was rolled out chaotically in January, had been stayed – temporarily blocked – by federal courts in Maryland and Hawaii in March, meaning the ban had never taken effect.
These rulings were later upheld by federal appeals circuit courts in California and Virginia, which found grounds for a violation of the establishment clause of the US constitution, which protects religious freedom, and also ruled that Trump was likely to have exceeded his statutory authority granted by Congress.
In a ruling in the fourth circuit of appeals issued in May, chief judge Roger Gregory cited Trump’s prior comments on the 2016 campaign trail, where he had called for a “total and complete shut down” of travel by Muslims to the US, as evidence that the order “drips with religious intolerance, animus and discrimination”.
The administration, which has long argued the travel ban is justified on national security grounds to allow new immigration vetting procedures to come into force, then appealed these rulings to the Supreme Court, requesting that the nine justices temporarily revoke the lower court orders until a full hearing in October.
The Supreme Court’s ruling on Monday only grants part of the administration’s requests, meaning those with “bona fide” ties to the US, such as family relations or those with placements at American educational institutions, should theoretically be allowed entry to the country.
The order says that individuals claiming relationships with family must have “a close familial relationship” with someone in the US. For those claiming a relationship with an entity, such as a university or a workplace, “the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading” the executive order.
But Stephen Yale-Loehr, a professor of immigration law at Cornell University said the wording of the decision left the manner in which the order would be enforced open to interpretation.
“How individuals will prove such a [bona fide] relationship, and whether the burden of proof will be on the government or the individuals seeking entry, remains to be seen,” Yale-Loehr said. “I predict chaos at the border and new lawsuits as foreign nationals and refugees argue that they are entitled to enter the United States.”
The prediction of more discord at airports was mirrored by Amnesty International USA executive director Margaret Huang.
“Rather than keeping anyone safe,” Huang said, “this ban demonizes millions of innocent people and creates anxiety and instability for people who want to visit a relative, work, study, return to the country they call home, or just travel without fear.”
It also remains to be seen whether the Supreme Court will ever hear full arguments in the case, since the contested parts of the ban may no longer be in force by the time the court hears the case.
By scheduling a full hearing for October at the earliest, the court has potentially given the government time to implement parts of the temporary ban, and introduce new vetting procedures before the case is due to be heard. The 90-day visa ban and the 120-day refugee ban could both have been and gone by the time the case arrives before the bench – although the order allows the president to extend his moratorium on travel indefinitely.
Three of the court’s conservative justices – Clarence Thomas, Samuel Alito, and newly appointed justice Neil Gorsuch – also issued a dissenting opinion in which they argued the ban should have been allowed to go into full effect.
Sean Spicer, the White House press secretary, was challenged at his media briefing over claims he and the president made that this was a “9-0 decision”.
A reporter argued that in fact it had been a per curium decision – entered on behalf of the court as a whole but not necessarily agreed to by every judge.
Looking sheepish, Spicer replied: “I’m gonna get back with counsel and ask them. That was on them, so I’ll find out where they got that from.”