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Analyzing President Trump’s revised travel ban

President Trump’s revised executive order, which bans entry of foreign nationals from six Muslim majority countries with alleged heightened terrorism risks, is set to be heard by the Supreme Court in October.

Within his first weeks in office, President Donald Trump issued an executive order banning the entry of foreign nationals from six Muslim majority countries — Iran, Libya, Somalia, Sudan, Syria, and Yemen — on the grounds that nationals from these countries presented a “heightened risk to the security of the United States.”  This Executive Order, No. 13769 (EO–13769), was immediately met with opposition and litigated by individuals who felt they had, or were going to, suffer harm by the execution of the media–named “travel ban.”

This first executive order was subsequently struck down by lower federal courts which led President Trump to revoke EO–13769 and issue Executive Order No. 13780 (EO–13780), which was a narrower interpretation of the first Executive Order.  The second order was also challenged in two separate cases alleging the order violated the Establishment Clause of the First Amendment and did not comply with certain provisions of the Immigration and Nationality Act.  Lower federal district courts within the Courts of Appeal for the Fourth and Ninth Circuits found that the order did violate the Establishment Clause and ordered preliminary injunctions to specific sections of the order.  The federal government then filed appeals to each respective Courts of Appeal which subsequently upheld the district courts’ rulings, keeping the nationwide injunctions in place.

The second Executive Order sets out many directives that the Court must tackle this coming October. 

The federal government then filed petitions for certiorari and emergency stays of the preliminary injunctions to the Supreme Court of the United States.  The Supreme Court granted certiorari on Monday June 22, 2017 and released their Per Curiam opinion on Friday, June 26, in anticipation of oral argument this fall term.  The second executive order sets out many directives that the Court must tackle this coming October.

The first relevant portion of the order directs the Secretary of Homeland Security to conduct a 20–day global review to determine whether foreign governments provide adequate information about nationals applying for United States visas.  The second provision suspends entry from the six above-named countries for 90 days from the effective date of the order.  A third directive suspends decisions on applications of refugee status and travel of refugees into the United States under the   (USRAP) for 120 days.  During that time, the Secretary of State shall “review the adequacy of USRAP application and adjudication procedures and implement whatever additional procedures are necessary to ensure that individuals seeking admission as refugees do not pose a threat to national security.”  A fourth relevant provision places a cap on the number of refugees allowed in fiscal year 2017 at 50,000 because more entries  would be detrimental to the interests of the United States.

In its opinion, the Supreme Court focused primarily on the suspended entry directive.  The Court began its analysis by granting and staying the injunction in part.  The Court allowed the order to be effective against foreign nationals who lack any “bona fide relationship with a person or entity in the United States.”  However, the injunction was left in place for those who can show that they have this type of relationship with regards to the United States.

In its analysis of staying the injunction, the Court needed to ensure it was striking a necessary balance of the relative harms to the applicant, the foreign nationals challenging EO–13780, and the interests of the United States Government, as well as the interests of the public at large.  It looked to the reasoning of the Fourth and Ninth Circuits along with the district courts’ findings to see if the appropriate balance had been struck.  The Supreme Court acknowledged the Ninth Circuit’s reasoning that enforcing the suspended entry provision would represent a hardship to the State of Hawaii because students who had been admitted to the University of Hawaii would be prevented from attending.  This hardship was found to outweigh the Government’s interest in enforcing the entry ban against the six above mentioned countries.

The Government’s interest in preserving national security and enforcing the entry ban provision is “at its peak when a foreign national has no tie to the United States.”

The Court then went to the opposite end of the foreign national spectrum and found that the equities relied on by the lower court did not balance the same way in regards to foreign nationals who had no bona fide connection with a person or entity within the United States.  It cited a former case called Kleindienst v. Mandel that states, “[A]n unadmitted and nonresident alien ha[s] no constitutional right of entry to this country,” which led the Court to reason that the hardships encountered by those who do have a bona fide reason for entry do not fall into the same categories as foreign nationals who do not.  The Government’s interest in preserving national security and enforcing the entry ban provision is “at its peak when a foreign national has no tie to the United States.”  EO–13780 also includes a section which establishes a case–by–case waiver system that allows foreign nationals who do have a bona fide connection with a person or entity within the United States to show their connection to the country and obtain entry, which the Court felt was created to distinguish between these two categories.  This ultimately led to the Court’s decision to stay the injunction with regards to foreign nationals who have no bona fide relationship with the United States.

In defining what a “bona fide relationship” qualifies as, the Court looked to the facts of both consolidated cases.  The first case involved a man referred to as John Doe #1, who was a lawful permanent resident, and his Iranian wife who was seeking entry into the United States.  The second case was brought by the State of Hawaii and .  Hawaii claimed that the travel ban was an undue burden on the University of Hawaii’s ability to allow foreign nationals students who had been accepted to the school to attend. Dr. Elshikh was an American citizen whose Syrian mother was seeking entry.

The Court stated that a close familial relationship is required for entry and that a foreign national who is coming to visit or live with a family member satisfies such a relationship.  This definition seems to lend itself to meaning that you don’t even have to prove a blood relationship, just a typical familial relationship that is usually recognized in the United States.  With respect to entities, the relationship is required to be “formal, documented, and formed in the ordinary course rather than for the purpose of evading [EO–13780].”  This would allow a student accepted to an American university, a worker who accepted an offer of employment from an American company, or a lecturer invited to address an American audience all to gain lawful entry into the United States.

The Court concluded its Per Curiam opinion by quickly addressing the refugee admission and cap.  It noted that the balance struck regarding the entry ban—that foreign nationals with a bona fide relationship could be admitted while nationals with no connection were banned—was adequate for these challenged provisions.  Three judges, Clarence Thomas, Samuel Alito, and recently confirmed Neil Gorsuch, dissented from the majority opinion.  They reasoned that the preliminary injunctions should have been stayed in full rather than in part.  Additionally, they reasoned that the current remedy may prove unworkable and open the flood gates of litigation because of the somewhat vague definition of what constitutes a bona fide relationship.  As the summer continues and October quickly approaches, it will be interesting to see how the Court’s remedy will fare in practice and how it will ultimately decide the fate of Executive Order 13780.

Tommy Harvey III
About Tommy Harvey III (9 Articles)
Tommy Harvey III is a third year law student and serves as an Associate Editor for the Campbell Law Observer. He is originally from Atlanta, GA and received his undergraduate degree from the University of Miami. Tommy has worked for the United States Attorney’s Office, Eastern District of North Carolina and the Mecklenburg County District Attorney’s Office in Charlotte, NC. His legal interests include Civil Rights Law, Constitutional Law, and International Law. Tommy is a member of the Campbell Law Trial Team, and serves as a peer mentor as well as the current Vice President and past Treasurer for the Campbell Law Black Law Students Association.