Depending on your perspective you may see the recent Supreme Court “decision” in Trump v. IRAP as a victory, a loss or neither. I put the term “decision” in quotation marks because while technically a decision, what the Court actually did was issue a preliminary ruling on how the case will be handled pending its final resolution in the Fall or Spring. I view the decision as a preliminary skirmish and neither a victory nor a loss.
How you view the Court’s decision will likely depend on whether you are the type of person who sees the glass as half empty or half full. I prefer to focus on what the Court was dealing with in the immediate task at hand, which was to decide what should happen to those persons who were applying for visas or admission from the relevant countries while the case was pending – after all they were being asked by the Administration to completely set aside the implementation of the lower court’s “full stop” on the “Travel Ban.” Effectively, their preliminary decision was to limit the application of the travel ban to the smallest group of people who would likely be impacted during the period from now to when the case is finally decided the case. People with the most attenuated ties to the U.S., while meriting protection might not have been able to get here in any event during the time that this case is being considered by the Court. I am not arguing in favor of the Court’s reasoning but articulating why it might have chosen to balance the equities in this manner. Those who saw the glass as “half empty” considered the decision as a repudiation of the lower court placed a full stop on the ban. Let us be clear that the normal refugee process (from application to admission), particularly from conflicted areas is probably 18 months. This is much longer than the life of this Executive Order. Those who view the glass as half full can take solace in the Court’s acknowledgment of the interests of travelers coming to join family or other relations in the U.S. Those who view the glass as half empty will focus on future refugee applicants who are unable to establish relationships in the US under the articulated standard.
Who is covered by the Decision?
Clearly the per curiam order permits the suspension of admission of persons from the listed countries “who lack any bona fide relationship with a person or entity in the United States.” However what is or is not a bona fide relationship is not clear and may be subject to arbitrariness by lower level officials. The Court makes it clear that it contemplates that people like the parties in the litigation which resulted in the injunction entered by the lower courts would not be subject to the ban. Those were family, students and researchers. It is notable that the term “bona fide” as used by the Court is far broader than the normally narrow relationships found in the immigration laws – these are limited to parent-child, spousal, siblings and employer-employee relations. However here they could also encompass students coming to study or persons attending conferences, etc. The relationships could easily include refugees coming under the sponsorship of refugee settlement agencies. But does it include refugees without any familial relationships in the U.S.? There is a strong argument that these relationships satisfy the requirements since many of these organizations were found to have standing to bring the cases in the first place and the Court specifically mention them in the per curiam order. Indeed most refugees are admitted under this form of sponsorship. However it is most perplexing that the Court did not provide a mechanism to clarify the meaning of “bona fide” relationships. Lower level officials will likely feel free to apply whatever definition suits their fancy. Surely this will invite the parties to seek clarification and how that will be accomplished could create even more drama in the coming months.
What does the Decision say about how the Court will rule on the merits?
The decision issued on Monday while unsigned included a dissent by Justices Thomas, Alito and Gorsuch. They argued that the stay should be lifted in its entirety and the Travel Ban should be implemented. Some believe that the granting of Certiorari and narrowing of the stay speaks volumes about where the Court is headed when they decide the case on the merits. However another way to look at this decision, and this is where I am, is that the separate dissent only tells us what I assumed all along, which is that these three Justices were never likely supporters of any restraint on this exercise of Executive power. The dissenters are of the view that “there is a significant possibility that the judgment below will be reversed.” Does that then mean that the remaining justices view the case differently, that “there is a significant possibility” that the respondents with a bona fide relationship with persons or entities will prevail?
In the end there are many issues presented in this case involving statutory interpretation and Constitutional interpretation, none of which were articulated in the decision rendered this past Monday and we do not know how the Court will decide this case. A clear victory at this stage for the Trump Administration would have been the Court’s doing what the dissenters argued – setting aside the injunction. A clear victory for the challengers would have been if the entire order had been upheld. But in the end, the each side got something. The Executive Order remains unenforceable for nationals from the designated countries who have bona fide relationships with persons or entities in this country and that includes refugees bearing those same relationships including sponsorship.
Finally, and more curious, the Court made requested that the parties address the matter of whether the challenge to Section 2(c) of the Executive Order was rendered moot on June 14, as that was the expiration date of the review period set forth in the second Order. The Executive Order was temporary and set a 90 day review period in which to develop guidelines and procedures. Another curiosity of this case was the Administration’s decision not to seek expedited review or to even move forward on how these restrictions would be applied or whether it would invoke a permanent ban based on such review. Surely at least for some of the Justices this may send a message about how serious this so-called national security threat really is.