The Next Assault on the Travel Order Begins

By Andrew R. Arthur on July 3, 2017

In my June 29, 2017 post, I detailed how the Trump administration was preparing to begin implementation, in accordance with limitations in a June 26, 2017, Supreme Court decision, of Executive Order 13780, "Protecting the Nation from Foreign Terrorist Entry into the United States" (EO-2).

I previously noted that Justice Thomas had reasonably feared that the Court's decision would be "unworkable", reflecting a "compromise" that would "invite a flood of litigation." That litigation has now begun, and will likely only intensify.

Very briefly by way of background, Section 2(c) of EO-2 suspended the entry of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen for 90 days from the effective date of that order, subject to certain "limitations ... and exceptions", including for lawful permanent residents, dual nationals, aliens granted asylum, and refugees already admitted. These countries were so identified, the order explained, because conditions in each (as detailed in section 1(e) of EO-2) "demonstrate" that nationals of those countries "present heightened risks to the security of the United States." Section 3 of EO-2 also provided waivers of section 2 on a "case-by-case basis" for affected foreign nationals.

Section 6(a) of EO-2 suspended decisions on refugee applications for 120 days, and section 6(b) of that order capped the number of refugees to be admitted in FY 2017 at 50,000. Section 6(c) of that order made "case-by-case" waivers of the suspension in section 6(a) available.

The Supreme Court granted the government's requests to stay two circuit court orders that enjoined those provisions, "to the extent the injunctions prevent[ed] enforcement of [section 2(c) of EO-2] with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States." It left the "injunctions entered by the lower courts in place", however, "with respect to respondents and those similarly situated."

The Court explained that under its order, section 2(c) of EO-2:

[M]ay not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of EO–2.

The facts of these cases illustrate the sort of relationship that qualifies. 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 ... 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. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience.

The Court warned, however, that "someone who enters into a relationship simply to avoid [section 2(c) of EO-2]" would not qualify for the injunction.

With respect to a Ninth Circuit injunction on enforcement of the suspension of refugee admissions under section 6(a) of EO-2, and the 50,000-refugee cap in section 6(b) of that order, the Court held that the "equitable balance" it crafted with respect to section 2(c) of EO-2 would apply to those sections, as well:

An American individual or entity that has a bona fide relationship with a particular person seeking to enter the country as a refugee can legitimately claim concrete hardship if that person is excluded. As to these individuals and entities, we do not disturb the injunction. But when it comes to refugees who lack any such connection to the United States, for the reasons we have set out, the balance tips in favor of the Government's compelling need to provide for the Nation's security.

Based on this, the Court concluded that:

Section 6(a) may not be enforced against an individual seeking admission as a refugee who can credibly claim a bona fide relationship with a person or entity in the United States. Nor may [section 6(b) of EO-2]; that is, such a person may not be excluded pursuant to [section 6(b) of EO-2], even if the 50,000-person cap has been reached or exceeded. As applied to all other individuals, the provisions may take effect.

In my June 26, 2017 post, I detailed the tortuous path by which the temporary suspension of entry for a discrete group of foreign nationals in EO-2 managed to make its way to the Supreme Court, and broke down the Court's ultimate decision.

At the end of that post, I referenced the opinion written by Justice Thomas (in which he was joined by Justices Alito and Gorsuch), concurring in part and dissenting in part from that per curiam Supreme Court order. As Justice Thomas concluded his opinion:

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. ... The compromise also will invite a flood of litigation until this case is finally resolved on the merits, as parties and courts 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 [section 2(c) of EO-2]". ... And litigation of the factual and legal issues that are likely to arise will presumably be directed to the two District Courts whose initial orders in these cases this Court has now — unanimously — found sufficiently questionable to be stayed as to the vast majority of the people potentially affected.

On June 29, 2017, the plaintiffs in the Ninth Circuit case (the State of Hawaii and Ismail Elshikh) filed a Motion to Clarify Scope of Preliminary Injunction before the federal District Court judge who issued the initial order that circuit court reviewed. In that motion, the plaintiffs asked the District Court to "clarify":

(1) [T]hat the injunction bars the Government from enforcing the Executive Order against fiancés, grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States; (2) that refugees with a bona fide relationship with a person or entity in the United States are covered by the injunction; and (3) that the Government may not apply a presumption that aliens lack a "bona fide relationship with a person or entity in the United States."

An article reporting on that motion quotes "Melanie Nezer of the refugee-aid group HIAS", who states: "There's definitely no shortage of people who are interested in litigating this. ... This is something that so many Americans across the county are very upset about."

Just as Justice Thomas predicted.

The Supreme Court's compromise decision was too vague, and left too much unsaid. While its analysis was quite thorough, rather than listing the qualifying "close familial relationships" that would exclude a foreign national from the coverage of section 2(c) of EO-2, the Court instead provided an unhelpful "illustrat[ion]": wives and mothers-in-law. Worse, refugee processing is a fairly uniformly applied system, but instead of explaining where in the system a "bona-fide relationship" must be formed to exempt a foreign national from sections 6(a) and (b) of EO-2, or, again list the necessary relationships for such exemption, the Court says nothing.

What remains to be seen is how much is left of EO-2 by the time that lower courts that did not like the president's actions to begin with get done "construing" the Supreme Court's order.