President Donald Trump scored something close to a win when the U. Supreme Court approved implementation of a narrowed version of his travel ban, which aims to bar all refugees from entering the U. for 120 days and nationals from six Muslim-majority countries for 90 days. But even as the president took to Twitter to celebrate, immigration attorneys, law professors and refugees’ advocates questioned the direction and meaning of the ruling. Since January, when American airports were thrust into chaos by Trump’s initial executive order, two federal appeals courts have upheld blocks on a revised version of the ban. One court said the policy was “steeped in animus” toward Muslims and probably unconstitutional, while the other said Trump exceeded his powers under federal immigration laws. The Supreme Court says it will hear the administration’s appeal in its next nine-month session starting in October. It allowed the ban to be enforced in the meantime, with the provision that it doesn’t apply to foreigners with a "bona fide" relationship with the U. What’s a ‘bona fide’ relationship with the U.?
According to the Supreme Court’s June 26 order, it includes having family in the country that’s “formal, documented” and not formed for the purpose of evading the president’s edict, admission to a university, an accepted job offer, and an invitation to lecture. It explicitly excludes refugee applicants approached by nonprofit groups for the purpose of providing legal aid for immigration. The definition leaves plenty of room for questions and interpretation. How close does the family connection have to be? What about a child whose parents were connected to the U. but died in civil war? The list of possible scenarios is long. Who gets to decide?
Attorneys, professors and refugee advocates are calling for the Justice Department and Department of Homeland Security to offer a more detailed definition of “bona fide relationship.” The concern is that if the government leaves the term vague, its interpretation will be left up to individual customs officers. The Department of Homeland Security says it will impose Trump’s order “professionally, with clear and sufficient public notice, particularly to potentially affected travelers, and in coordination with partners in the travel industry.” The issue of public notice raises the question of whether the narrower ban approved by the Supreme Court will be implemented within 72 hours of the court’s decision, as Trump had announced earlier in June, or whether the government will slow the pace of enforcement to avoid confusion. Can decisions be appealed?
Yes. Lower courts may get a chance to weigh in if applicants for admission to the U. and third parties sue as they “struggle to determine what exactly constitutes a bona fide relationship,” wrote Justice Clarence Thomas in a dissenting opinion. Thomas was one of three justices who said Trump’s order should be reinstated without compromise. Litigation could be triggered when a visa applicant from one of the six targeted countries -- Iran, Syria, Libya, Yemen, Sudan and Somalia -- is denied an entry permit. states may sue as well, claiming that they have been harmed by a lack of diversity because people from these countries are being denied entry. Such were the claims made by the district attorneys of Washington and Hawaii in suing to halt enforcement of the president’s bans. What happens after the 60- and 90-day bans expire?
There are a few scenarios that could play out. Trump could simply extend them with another order. He could declare victory when the time is up, and say he succeeded in ensuring national security by instituting the bans while visa-entry procedures for those countries were reviewed. He could make the travel ban a more permanent policy by requiring the six countries to share more information about visa applicants before the order against their nationals is rescinded, likely triggering further litigation. How will the ban’s opponents change their legal approach?
The Supreme Court ruled in its order that the government is likely to suffer irreparable harm if the travel ban is not imposed -- meaning the U. could be attacked by a national from one of the six countries, making a ban justifiable. Attorneys challenging the order are likely to refute this claim by arguing that visitors from these countries are no more of a threat than any others. In the meantime, plaintiffs won’t shy away from their claim that the president’s policy was founded on discriminatory intent against Muslims, citing comments he made during his presidential campaign. Did Trump really win this round?
Both sides are claiming victory. Trump took to Twitter to praise the Supreme Court for its decision, exclaiming, “We must keep America SAFE.” Meanwhile, the American Civil Liberties Union, attorneys general from multiple states and President Barack Obama’s former solicitor general, who’s arguing the case for Hawaii, say they are happy with the court’s decision to continue suspension of the executive order for those with connections to the U.
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