The Straight Scoop:
- The Supreme Court has reversed the decision of lower courts, and the 4th and 9th circuit of appeals, and has voted to allow portions of the President’s Executive Order to proceed. The Executive Order called for suspending entry to nationals from residents of Iran, Libya, Somalia, Sudan, Syria and Yemen for 90 days to allow for a review of the current vetting system. The order will take effect 72 hours after the ruling.
- The President can now refuse entry to the residents of these countries, provided they don’t have a “credible claim of a bona fide relationship with a person or entity in the United States… For individuals, a close familial relationship is required…As for entities, the relationship must be formal, documented [students, foreign employees], and formed in the ordinary course, rather than for the purpose of evading [the Executive Order]”
- The Supreme Court will hear the full case on the Executive Order when they return to session in October.
The Left Spin
The Right Spin
More Straight Scoop
- Regarding refugees “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…we do not disturb the injunction…But when it comes to refugees who lack any such connection to the United States…the balance tips in favor of the Government’s compelling need to provide for the Nation’s security.”
- Justices Samuel Alito, Clarence Thomas and Neil Gorsuch wrote a partial dissent, arguing that the ban should apply to all travelers, and that “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.”
- The Department of Homeland Security released a statement which said “The Department will provide additional details on implementation after consultation with the Departments of Justice and State. The implementation of the Executive Order will be done professionally, with clear and sufficient public notice, particularly to potentially affected travelers, and in coordination with partners in the travel industry.”
Original Source Material
From the Supreme Court opinion:
- Background: “On January 27, 2017, President Donald J. Trump signed Executive Order No. 13769, Protecting the Nation From Foreign Terrorist Entry Into the United States. (EO–1)… Among other directives, the order suspended entry of foreign nationals from seven countries identified as presenting heightened terrorism risks—Iran, Iraq,Libya, Somalia, Sudan, Syria, and Yemen—for 90 days.§3(c). Executive officials were instructed to review the adequacy of current practices relating to visa adjudications during this 90-day period. §3(a). EO–1 also modified refugee policy, suspending the United States Refugee Admissions Program (USRAP) for 120 days and reducing the number of refugees eligible to be admitted to the United States during fiscal year 2017. §§5(a), (d).” EO–1 was immediately challenged in court.
- Just a week after the order was issued, a Federal District Court entered a nationwide temporary restraining order enjoining enforcement of several of its key provisions. Washington v. Trump, 2017 WL 462040 (WD Wash., Feb. 3, 2017).
- Six days later, the Court of Appeals for the Ninth Circuit denied the Government’s emergency motion to stay the order pending appeal. Washington v. Trump, 847 F. 3d1151 (2017). Rather than continue to litigate EO–1, the Government announced that it would revoke the order and issue a new one.
- A second order followed on March 6, 2017. See Protecting the Nation From Foreign Terrorist Entry Into the United States, Exec. Order No. 13780, 82 Fed. Reg. 13209(EO–2). EO–2 describes “conditions in six of the . . . countries” as to which EO–1 had suspended entry, stating that these conditions “demonstrate [that] nationals [of those countries] continue to present heightened risks to the security of the United States,” §1(e), and that “some of those who have entered the United States through our immigration system have proved to be threats to our national security,” §1(h).Having identified these concerns, EO–2 sets out a series of directives patterned on those found in EO–1. Several are relevant here.
- First, EO–2 directs the Secretary of Homeland Security to conduct a global review to deter-mine whether foreign governments provide adequate information about nationals applying for United States visas. §2(a). EO–2 directs the Secretary to report his findings to the President within 20 days of the order’s“effective date,” after which time those nations identified as deficient will be given 50 days to alter their practices.§§2(b), (d)–(e).
- Second, EO–2 directs that entry of nationals from six of the seven countries designated in EO–1—Iran, Libya,Somalia, Sudan, Syria, and Yemen—be “suspended for 90 days from the effective date” of the order. §2(c). EO–2 explains that this 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”; in addition, suspending entry will “temporarily reduce investigative burdens on agencies” during the Secretary’s 20-day review. A separate section provides for case-by-case waivers of the entry bar. §3(c).
- Third, EO–2 suspends “decisions on applications for refugee status” and “travel of refugees into the United States under the USRAP” for 120 days following its effective date. §6(a). During that period, the Secretary of State is instructed to review the adequacy of USRAP application and adjudication procedures and implement restraining order). In addition to the §2(c) suspension of entry, this injunction covered the §6(a) suspension of refugee admissions, the §6(b) reduction in the refugee cap,and the provisions in §§2 and 6 pertaining only to internal executive review.These orders, entered before EO–2 went into effect,prevented the Government from initiating enforcement of the challenged provisions. The Government filed appeals in both cases.
- Fourth, citing the President’s determination that “the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States,” EO–2 “suspend[s] any entries in excess of that number” for this fiscal year. §6(b).Finally, §14 of EO–2 establishes the order’s effective date: March 16, 2017. Respondents in these cases filed separate lawsuits challenging EO–2. As relevant, they argued that the order violates the Establishment Clause of the First Amendment because it was motivated not by concerns pertaining to national security, but by animus toward Islam. They further argued that EO–2 does not comply with certain provisions in the Immigration and Nationality Act (INA),66 Stat. 187, as amended.In No. 16–1436, a Federal District Court concluded that respondents were likely to succeed on their Establishment Clause claim with respect to §2(c) of EO–2—the provision temporarily suspending entry from six countries—and entered a nationwide preliminary injunction barring the Government from enforcing §2(c) against any foreign national seeking entry to the United States.
International Refugee Assistance Project.
- The Court of Appeals for the Fourth Circuit ruled first.On May 25, over three dissenting votes… that largely upheld the order enjoining enforcement of §2(c). 857 F. 3d 554. The majority determined that respondent John Doe #1, a lawful permanent resident whose Iranian wife is seeking entry to the United States, was likely to succeed on the merits of his Establishment Clause claim. The majority concluded that the primary purpose of §2(c) was religious, in violation of the First Amendment: A reasonable observer familiar with all the circumstances—including the predominantly Muslim character of the designated countries and statements made by President Trump during his Presidential campaign—would conclude that §2(c) was motivated principally by a desire to exclude Muslims from the United States, not by considerations relating to national security. Having reached this conclusion, the court upheld the preliminary injunction prohibiting enforcement of§2(c) against any foreign national seeking to enter this country.
- On the same day respondents filed, the Ninth Circuit ruled in Hawaii… A unanimous panel held in favor of respondents the State of Hawaii and Dr. Ismail Elshikh,an American citizen and imam whose Syrian mother-in-law is seeking entry to this country. Rather than rely on the constitutional grounds supporting the District Court’s decision, the court held that portions of EO–2 likely exceeded the President’s authority under the INA. On that basis it upheld the injunction as to the §2(c) entry suspension, the §6(a) suspension of refugee admissions, and the§6(b) refugee cap. The Ninth Circuit, like the Fourth Circuit, concluded that the injunction should bar enforcement of these provisions across the board, because they would violate the INA “in all applications.”
- “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. Here, of course, we are not asked to grant a preliminary injunction, but to stay one. In assessing the lower courts’exercise of equitable discretion, we bring to bear an equitable judgment of our own. Before issuing a stay, “[i]t is ultimately neces-sary . . . to balance the equities—to explore the relative harms to applicant and respondent, as well as the interests of the public at large.”
- The courts below took account of the equities in fashioning interim relief, focusing specifically on the concrete burdens that would fall on Doe, Dr. Elshikh, and Hawaii if§2(c) were enforced. They reasoned that §2(c) would “directly affec[t]” Doe and Dr. Elshikh by delaying entry of their family members to the United States. The Ninth Circuit concluded that §2(c) would harm the State by preventing students from the designated nations who had been admitted to the University of Hawaii from entering this country. These hardships, the courts reasoned, were sufficiently weighty and immediate to outweigh the Government’s interest in enforcing §2(c).
- Having adopted this view of the equities, the courts approved injunctions that covered not just respondents, but parties similarly situated to them—that is, people or entities in the United States who have relationships with foreign nationals abroad, and whose rights might be affected if those foreign nationals were excluded.
- But the injunctions reach much further than that: They also bar enforcement of §2(c) against foreign nationals abroad who have no connection to the United States at all.The equities relied on by the lower courts do not balance the same way in that context.
- Denying entry to such a foreign national does not burden any American party by reason of that party’s relationship with the foreign national. And the courts below did not conclude that exclusion in such circumstances would impose any legally relevant hardship on the foreign national himself. (“[A]n unadmitted and nonresident alien . . . ha[s] no constitutional right of entry to this country”). So whatever burdens may result from enforcement of §2(c) against a foreign national who lacks any connection to this country,they are, at a minimum, a good deal less concrete than the hardships identified by the courts below.
- 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. The interest in preserving national security is “an urgent objective of the highest order.”
- 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 en-forced 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 facts of these cases illustrate the sort of relationship that qualifies. For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship.
- As for entities, the relationship must be formal, documented, and formed in the ordinary course,rather than for the purpose of evading EO–2. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.
- In light of the June 12 decision of the Ninth Circuit vacating the injunction as to §2(a), the executive review directed by that subsection may proceed promptly, if it is not already underway. EO–2 instructs the Secretary of Homeland Security to complete this review within 20 days, after which time foreign governments will be given 50 days further to bring their practices into line with the Secretary’s directives. §§2(a)–(b), (d).
- Given the Government’s representations in this litigation concerning there sources 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 90-day life of§2(c).
- The Hawaii injunction extends beyond §2(c) to bar enforcement of the §6(a) suspension of refugee admissions and the §6(b) refugee cap. In our view, the equitable balance struck above applies in this context as well. 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. As to these individuals and entities, we do not disturb the injunction.
- 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.
- 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.
- Accordingly, the petitions for certiorari are granted, and the stay applications are granted in part.
- It is so ordered.
- “JUSTICE THOMAS, with whom JUSTICE ALITO and JUSTICE GORSUCH join, concurring in part and dissenting in part. I agree with the Court that the preliminary injunction sentered in these cases should be stayed, although I would stay them in full. The decision whether to stay the injunctions is committed to our discretion, but our discretion must be “guided by sound legal principles.”
- The two “most critical” factors we must consider in deciding whether to grant a stay are“(1) whether the stay applicant has made a strong showing that [it] is likely to succeed on the merits” and“(2) whether the applicant will be irreparably injured.
- Where a party seeks a stay pending certiorari, as here, the applicant satisfies the first factor only if it can show both“a reasonable probability that certiorari will be granted” and “a significant possibility that the judgment below will be reversed.” When we determine that those critical factors are satisfied, we must “balance the equities” by “explor[ing] the relative harms to applicant and respondent, as well as the interests of the public at large.”
- The Government has satisfied the standard for issuing a stay pending certiorari. We have, of course, decided to grant certiorari. 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.”
- Finally, weighing the Government’s interest in preserving national security against the hard-ships 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.
- Reasonable minds may disagree on where the balance of equities lies as between the Government and respondents in these cases. It would have been reasonable, perhaps,for the Court to have left the injunctions in place only as to respondents themselves. But the Court takes the additional step of keeping the injunctions in place with regard to an unidentified, unnamed group of foreign nationals abroad. No class has been certified, and neither party asks for the scope of relief that the Court today provides.“[I]njunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs” in the case…because a court’s role is“to provide relief ” only “to claimants . . . who have suffered, or will imminently suffer, actual harm.”
- In contrast, it is the role of the “political branches” to “shape the institutions of government in such fashion as to comply with the laws and the Constitution.”
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.
- 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.
- 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.