The Supreme Court issued today a per curiam order, in which it agreed to the government's request for certiorari and partially granted the government's application to stay preliminary injunctions in two recent circuit court decisions that enjoined, in part, provisions of Executive Order 13,780, captioned "Protecting The Nation From Foreign Terrorist Entry Into The United States" (EO-2).
Although this is a victory for the president, it is likely to generate more litigation until the Court issues its final ruling on the matter.
By way of background, on January 27, 2017, President Trump issued Executive Order 13,769 (EO-1), which was also captioned "Protecting the Nation from Foreign Terrorist Entry into the United States". On February 3, 2017, a federal District Court judge in the Western District of Washington issued a temporary restraining order (TRO) that prevented the government from enforcing sections 3(c), 5(a), 5(b), 5(c), and (in part) 5(e) of that executive order. On February 9, 2017, the Ninth Circuit in Washington v. Trump denied the government's motion for an emergency stay of that TRO. The Ninth Circuit denied that motion on due process grounds, holding:
The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual's ability to travel. Indeed, the Government does not contend that the Executive Order provides for such process. Rather, in addition to the arguments addressed in other parts of this opinion, the Government argues that most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause.
Significantly, the court stated that:
[E]ven if the TRO might be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order. ... The political branches are far better equipped to make appropriate distinctions. For now, it is enough for us to conclude that the Government has failed to establish that it will likely succeed on its due process argument in this appeal.
On March 6, 2017, in apparent response to this invitation from the Ninth Circuit to rewrite EO-1, the president issued EO-2.
As the Fourth Circuit later described it, section 2(c) of EO-2:
[R]einstated the ninety-day suspension of entry for nationals from six countries, eliminating Iraq from the list, but retaining Iran, Libya, Somalia, Sudan, Syria, and Yemen (the "Designated Countries"). The President, again invoking 8 U.S.C. § 1182(f) and also citing 8 U.S.C. § 1185(a), declared that the "unrestricted entry" of nationals from these countries "would be detrimental to the interests of the United States."
The Second Executive Order, unlike its predecessor, states [in section 1(d)] that nationals from the Designated Countries warrant "additional scrutiny" because "the conditions in these countries present heightened threats." In justifying the selection of the Designated Countries, [section 1(d) of] EO-2 explains, "Each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones." The Second Executive Order states [in section 1(f)] that "until the assessment of current screening and vetting procedures required by section 2 of this order is completed, the risk of erroneously permitting entry of a national of one of these countries who intends to commit terrorist acts or otherwise harm the national security of the United States is unacceptably high."
The Second Executive Order also provides brief descriptions of the conditions in each of the Designated Countries. It notes [in section 1(e)(iv)], for instance, that "Sudan has been designated as a state sponsor of terrorism since 1993 because of its support for international terrorist groups, including Hizballah and Hamas[, and] ... elements of core al-Qa'ida and ISIS-linked terrorist groups remain active in the country." The Second Executive Order further states [in section 1(h)] that "[s]ince 2001, hundreds of persons born abroad have been convicted of terrorism-related crimes in the United States." [Section 1(h)] provides the following examples: two Iraqi refugees who were convicted of terrorism-related offenses in January 2013, and a naturalized citizen who came to this country as a child refugee from Somalia and who was sentenced for terrorism-related offenses in October 2014. The Second Executive Order does not include any examples of individuals from Iran, Libya, Sudan, Syria, or Yemen committing terrorism-related offenses in the United States.
The Second Executive Order clarifies [in section 3(a)] that the suspension of entry applies to foreign nationals who (1) are outside the United States on its effective date of March 16, 2017, (2) do not have a valid visa on that date, and (3) did not have a valid visa on the effective date of EO-1 — January 27, 2017. Section 2(c) does not bar entry of lawful permanent residents, dual citizens traveling under a passport issued by a non-banned country, asylees, or refugees already admitted to the United States.
The Second Executive Order also includes a provision that permits consular officers, in their discretion, to issue waivers on a case-by-case basis to individuals barred from entering the United States.
In addition, section 6(a) of EO-2 suspends the travel into the United States of refugees under the United States Refugee Admissions Program (USRAP) for 120 days. Section 6(b) of EO-2 reduces the number of refugees to be admitted in Fiscal Year 2017 to no more than 50,000, down from the 110,000 refugee-cap set by the Obama administration.
On May 25, 2017, the Court of Appeals for the Fourth Circuit issued a decision largely upholding a lower-court order enjoining section 2(c) of EO-2. It found therein that "the Government's asserted national security interest in enforcing Section 2(c) appears to be a post hoc, secondary justification for an executive action rooted in religious animus and intended to bar Muslims from this country."
As the Supreme Court noted, on June 1, 2017, the government filed a petition for certiorari seeking review of the decision of the Fourth Circuit, and also applications seeking a stay of the Fourth Circuit injunction and a stay of an order that had been issued by a federal District Court judge in Hawaii enjoining all of sections 2 and 6 of EO-2.
On June 12, 2017, the Court of Appeals for the Ninth Circuit issued a decision taking a different tack from the Fourth Circuit, but largely arriving at the same decision. Reviewing the Hawaiian lower-court order referenced above (that had enjoined all of sections 2 and 6 of EO-2), the Ninth Circuit found that provisions in EO-2 likely exceeded the authority of the president under the Immigration and Nationality Act (INA). On this basis, the Ninth Circuit upheld the lower-court injunction as it related to sections 2(c), 6(a), and 6(b) of EO-2. The Ninth Circuit order, however, narrowed the lower-court injunction to allow the internal executive reviews required by section 2 and section 6 of EO-2.
On June 14, 2017, the president issued a memorandum to executive branch officials declaring the effective date of EO-2 to be the date that these injunctions "are lifted or stayed with respect to that provision." This was likely necessary because, as the Supreme Court noted, the 90-day suspension of entry in section 2(c) of EO-2 would expire on June 14.
The Supreme Court's June 26 order granted the government's petitions for certiorari and consolidated the circuit court cases for argument. It also directed the parties to address whether the challenges to section 2(c) of EO-2 became moot on June 14, 2017.
With respect to the injunctions, the Court granted "the Government's applications to stay the injunctions, to the extent the injunctions prevent 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." Explaining this order, the Court stated:
In practical terms, this means that [section 2(c) of EO-2] may 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, explaining that "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 crafted this order, it asserted, by balancing the equities of the plaintiffs in the lower court cases (United States citizen family members of potential entrants whose entry was suspended by section 2(c) of EO-2, as well as the state of Hawaii, and students of the state university prevented from entry by that section) against the government's "interest in preserving national security".
With respect to the 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.
Justice Alito and Justice Gorsuch joined with Justice Thomas in concurring in part and dissenting in part from this decision. Unlike the "equitable balancing" above, Justice Thomas held that he would have stayed the lower-court injunctions in full, finding that the government had "satisfied the standard for issuing a stay pending certiorari." As he stated:
I agree with the Court's implicit conclusion that the Government has made a strong showing that it is likely to succeed on the merits —that is, that the judgments below will be reversed. The Government has also established that failure to stay the injunctions will cause irreparable harm by interfering with its "compelling need to provide for the Nation's security."
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.
In short, the Supreme Court's order was a victory for President Trump, in large part, but one that will likely lead, as Justice Thomas fears, to significant and drawn out litigation until the Supreme Court issues its ultimate order on EO-2.