On Monday, the US Supreme Court partially revived President Donald Trump’s revised travel ban, agreeing to hear arguments in October and allowing the administration to suspend travel for some foreign nationals and refugees until it decides the case. Trump immediately took to Twitter to declare triumph, but many travellers he hoped to ban can still enter the US, claiming their own victory.
And the Court has not reached the merits of the case that pits executive power on issues of immigration and national security against prohibitions on religious discrimination. That, along with a host of other legal issues, are weighty determinations the Court may be eager to avoid.
Until the Court issues its final decision, the ban “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States”. That connection would allow those with familial ties and students and employees to enter. But for those who cannot satisfy the requisite connection, the Court held, “the balance tips in favor of the Government’s compelling need to provide for the Nation’s security.”
The stay, which isl likely to take effect on June 29, elicited concern about how the standard would be interpreted and implemented, leaving some foreign nationals uncertain about whether their connections to the US would suffice.
Trump issued his first immigration order in January with little advance notice, barring travel from seven Muslim-majority countries – Iraq, Iran, Syria, Yemen, Somalia, Sudan and Libya – for 90 days, and suspending the refugee programme for 120 days, with an indefinite restriction on Syrian refugees. The initial order, implemented while some travellers were already en route, led to chaos at airports. Following protests and court challenges, the administration issued a second version of the order on March 6, which removed Iraq from the list, lifted the indefinite ban on Syrian refugees and exempted those with valid visas.
The revised order was crafted to deflect criticisms that its predecessor was motivated by bias, not national security concerns, by outlining its justification that the designated countries “present heightened threats” because “each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones”. Trump later disparaged the revised ban as a “watered down, politically correct version.”
Trump's national security urgency is belied by his administration's delays in developing the safeguards whose absence it claims imperils the country and justifies the ban.
Trump claimed the travel ban was a temporary pause necessary to allow his administration time to review its internal procedures and develop “extreme vetting” protocols without the burden of processing ongoing travel applications. But Trump’s national security urgency is belied by his administration’s delays in developing the safeguards whose absence it claims imperils the country and justifies the ban.
The orders ignited a firestorm of outrage at the logic underpinning the ban. Critics swiftly pointed out that none of the perpetrators of terror in the US hailed from listed countries and that the ban failed to include countries from which they originated. Others explained that the screening for refugees is already lengthy, onerous and rigorous. And some opponents argued that the order actually harms national security, as Stanford Law School’s Shirin Sinnar notes, “by alienating partners, diminishing international trust in the United States and feeding extremist narratives that the United States is at war with Islam”.
Two appeals courts had blocked the ban from taking effect. The Fourth Circuit based its decision on religious protections in the Constitution, noting that the action “speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination”. The charged climate has been stoked by Trump’s incendiary rhetoric, including his 2015 call for “a total and complete shutdown of Muslims entering the United States.”
The Ninth Circuit relied instead on federal immigration law, holding that “[i]mmigration, even for the President, is not a one-person show … National Security is not a ‘talismanic incantation’ that, once invoked, can support any and all exercise of executive power”. Trump’s order, the panel found, “does not tie these nationals in any way to terrorist organizations within the six designated countries”, nor does it “provide any link between an individual’s nationality and their propensity to commit terrorism or their inherent dangerousness”.
The high court’s review presents an opportunity for the judiciary to balance core religious protections against unrestrained executive power. In their dissenting opinion, the three most conservative justices telegraphed their support for the president’s position.
Advocates for immigrants argue the other way. As Omar Jadwat, the director of the ACLU’s Immigrants’ Rights Project, said in a statement, “President Trump’s Muslim ban violates the fundamental constitutional principle that government cannot favor or disfavor any one religion.” While other courts have blocked the ban, Jadwat said, “The Supreme Court now has a chance to permanently strike it down.” But since the 90 days the Trump administration insists is necessary to review its procedures will expire by the time the Court hears arguments, the case may be moot.
Though Trump is revelling in a much-needed “win”, the battle over his travel restrictions is not over. The Supreme Court could reverse the decision next term, or decline to reach the merits altogether. And there is certain to be more litigation over the administration’s implementation of the order and the procedures it adopts after the internal review is complete. So while the Court handed Trump a partial victory, it doesn’t give him the free reign he covets.
Lauren Carasik is a clinical professor of law and the Director of the International Human Rights Clinic at Western New England University School of Law. She has provided legal support for the water protectors.
The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.