The Supreme Court said Monday the president’s 90-day ban on visitors from Iran, Libya, Somalia, Sudan, Syria and Yemen can be enforced pending arguments scheduled for October — as long as those visitors lack a “credible claim of a bona fide relationship with a person or entity in the United States.”
But much remains murky: What exactly is a bona fide relationship? Who gets to decide? Will the travel ban even still be an issue by the time the justices hear arguments?
Here’s a look at some key issues surrounding President Donald Trump’s executive order:
WHO’S THE WINNER?
After the lower courts found the travel ban unconstitutionally biased against Muslims and contrary to federal immigration law, Trump hailed the Supreme Court’s decision as a “clear victory for our national security.”
Very grateful for the 9-O decision from the U. S. Supreme Court. We must keep America SAFE!— Donald J. Trump (@realDonaldTrump) June 26, 2017
It was a legal win for the administration — to an extent. Three justices — Clarence Thomas, Samuel Alito and Trump appointee Neil Gorsuch — said they would have allowed the travel ban to take effect as written.
But the other six kept blocking it as it applies to those traveling to the U.S. on employment, student or family immigrant visas as well as other cases where the traveler can show a “bona fide” connection to the U.S.
That’s no minor exception, according to immigrant groups, who say relatively few people come to the U.S. from the affected countries without such close ties.
Likewise, the justices said, refugees can travel to the U.S. if they demonstrate those connections — contrary to the part of Trump’s executive order suspending the nation’s refugee program.
“This decision is a true compromise,” said Kari Hong, an immigration law expert at Boston College Law School. “It is true that the travel ban is allowed to go into effect, but the Supreme Court substantially narrowed who could be denied entry.”
BUT WHAT’S ‘BONA FIDE’?
The court’s majority laid out the “bona fide” relationships it had in mind. For individuals, a close family relationship is required: A spouse or a mother-in-law would be permitted. So would a worker who accepted a job from an American company, a student enrolled at a U.S. university or a lecturer invited to address a U.S. audience.
What’s not bona fide? A relationship created for purposes of avoiding the travel ban, the justices said.
“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,” the court wrote.
AND WHO DECIDES?
Thomas, Alito and Gorsuch found that guidance confusing and 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,” Thomas wrote.
It also could lead to legal challenges amid the “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'” the travel ban,” he wrote.
LITTLE PRACTICAL IMPACT
Eric M. Freedman, a constitutional law professor at Hofstra University in Hempstead, said he expects the Supreme Court’s decision to review the case will have little practical impact, because the ban that remains in place excludes people with family or institutional ties to the United States.
“There will be no substantial change in the status quo, and it is highly unlikely that anyone will notice any change,” Freedman said Tuesday. “The decision gives some symbolic paper victory to the Trump administration without making any changes on the ground, because it leaves the ban in areas where it has no practical application . . . and the bet is the case will be moot and the whole thing will be dismissed” when the justices return in October.
Under the terms spelled out by the high court, he said, only tourists from the nations in question seem to be directly affected by the 90-day ban.
“The only identifiable class anybody has been able to think of are people traveling for the first time as visitors to America, or people who are very occasional visitors to America who decide they are going to come between now and October,” he said.
Mark Hetfield, president and CEO of HIAS, a refugee agency founded in New York City that last year helped resettle 4,000 people into the United States, said the court’s decision is not expected to affect refugee programs for the time being, because “by definition, refugees have to have a relationship” with resettlement agencies and the governments of their host countries before they are allowed in.
“They kind of have to be invited and fall into a special category and their applications are assisted” by the host government itself, he said.
“We are relieved,” Hetfield said. “We are quite pleased because, frankly, the ruling will have a very narrow impact, the way we read it, and it definitely made it clear that the president’s powers with regards to discrimination against refugees are at least limited.”
In addition, he said, the administration agreed when it revised its rules to wait 72 hours for implementation of any order and said it wouldn’t stop refugees who already were approved to come to the United States. Because of that, “it shouldn’t have a dramatic impact like what we saw on Jan. 27,” when there was chaos at international airports in various U.S. cities after the first order was signed.
MORE AIRPORT CHAOS TO COME?
Trump’s initial travel ban, issued without warning on a Friday in January, brought chaos and protests to airports nationwide as travelers from seven targeted countries were barred even if they had prior permission to come to the U.S. The State Department canceled up to 60,000 visas but later reversed that decision.
A federal judge in Seattle blocked the order a week later, and Trump eventually revised it, dropping Iraq from the list and including reasons people might be exempted, such as a need for medical treatment.
The limited ban will take effect Thursday morning, the State Department said Monday.
Airports may be less likely to see the same sorts of demonstrations given the advance warning, that those with prior permission to enter are not affected and the months people have had to reach the U.S. since the first ban was blocked.
Matt Adams, legal director of the Seattle-based Northwest Immigrant Rights Project, which filed one of many lawsuits against the policy, said he still expects some confusion at airports, at least initially. Eventually, people likely will be barred from boarding planes to the U.S., he said.
“With many groups, it’s clear-cut from the type of visa: Anyone coming in on family visa or employment visa, by their terms it’s clear they have a bona fide relationship,” he said. “What’s more difficult is if you’re coming in on a tourist visa. I think you’re going to be going through a lengthy inquiry, and we’ll have to see how that plays out.”
NEXT LEGAL STEPS
The Supreme Court would not hear arguments on the legality of the ban until October. But by then, a key provision may have expired, possibly making the review unnecessary.
That’s because Trump’s order only sought to halt travelers from the six countries for 90 days, to give the administration time to review the screening procedures for those visa applicants.
That's right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won't help us protect our people!— Donald J. Trump (@realDonaldTrump) June 6, 2017
The administration has argued that the ban would not go into effect until court orders blocking each provision were lifted. The Supreme Court has asked for more arguments about whether the challenges to the travel restriction became moot in June.
David Levine, a professor at the University of California’s Hastings College of Law, said the justices likely will not sidestep a ruling on the executive order on those grounds.
“The underlying issue of presidential power is too important and too likely to occur in the future,” he said.