Today, in a per curiam ruling, the Supreme Court restored the vast majority of the Trump administration’s temporary travel ban — including the temporary ban on refugee entry. The lower courts’ injunctions remain only in the narrowest of categories — where the person seeking entry has “bona fide relationships with a person or entity in the United States.”
And what is a “bona fide relationship?” The court’s guidelines were strict:
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.
In other words, SCOTUS made short work of the claim that a person’s desire to bring their mother-in-law to the U.S. (or a university’s desire to admit a few students or have a lecturer travel for a seminar) granted them the ability to stand in for every single citizen of every affected country:
Denying entry to such [an unconnected] 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.
At the same time, the Government’s interest in enforcing §2(c), and the Executive’s authority to do so, are un- doubtedly 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.” Holder v. Humanitarian Law Project, 561 U. S. 1, 28 (2010). 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.
Notably absent from the court’s decision is any analysis of Trump’s campaign statements. Moreover, the only dissenters from the opinion (justices Gorsuch, Alito, and Thomas) wanted the injunctions vacated in their entirety. They are correct that the court’s ruling will invite further litigation as litigants test the boundaries of the “bona fide relationships,” but the difference between the dissenters and the six remaining justices was only over the proper extent of Trump’s legal victory. For now, the constitutional and statutory primacy of the executive and legislative branches over national security and immigration has been restored.
The judges in the courts below have been celebrated as heroic resistance figures. Yet now even the Supreme Court’s most liberal justices have rejected the lower courts’ overreach. The Trump administration is free to conduct its global review to determine whether foreign governments provide sufficient information about foreign nationals applying for entry to the U.S., it’s free for now to impose its new refugee caps, it’s free to temporarily pause entry from Iran, Syria, Libya, Yemen, Sudan, and Somalia, and it’s free to pause refugee entry (unless refugees and applicants for entry have a “bona fide” U.S. relationship). That’s a win for Trump.
The court will hear the full case during its October term, but the majority of the case may well be moot by that time (indeed, that’s one question the court will consider). The administration will have had time to complete its reviews, and in the meantime the travel pause will apply to the vast majority of the citizens of the affected states. Indeed, the administration will have time to issue new immigration guidance based on the results of its review. The resistance’s greatest legal victory has been gutted, and not even Ruth Bader Ginsburg accepted its most extreme arguments.