The Supreme Court has unanimously granted a stay against the injunction the lower courts placed on the ban. They’ll hear the full arguments in October.
The hidden joke is that this is all pointless. The 90 day time frame for the revised Executive Order (which is 90 days) has already elapsed. There’s already been time to review current vetting procedures and establish new ones, right? Well, there would have been, I suppose, but the Trump Administration decided to start the clock over again by setting a new effective date.
Also, the Court is going to hear full arguments on this case in October, which means that the ban will have been in effect for over 90 days. Again, it’s all pointless except for the fact that Trump now can claim he’s won at something and delivered upon a campaign promise.
The Court did offer some insights with this decision.
We grant the Government’s applications to stay the injunctions, to the extent the injunctions prevent enforcement of §2(c) with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States. We leave the injunctions entered by the lower courts in place with respect to respondents and those similarly situated, as specified in this opinion.
What this means is that if a foreign person already has a family member, job, student enrollment, or whatever in the US, then the lower courts’ injunction is still in effect. However, if the person doesn’t, then he or she is pretty much going to have to wait until the ban expires. This bit is particularly interesting:
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, 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. 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.
Not so someone who enters into a relationship simply to avoid §2(c): 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.
So Trump didn’t entirely win on this. His options now are to either declare victory and put his extreme vetting in place (safe choice) or try to extend the ban further and get SCOTUS to bless it (risky).
Which way will that go? Well, not surprisingly, Thomas (joined by Gorsuch and Alito) would fully uphold the ban.
Finally, weighing the Government’s interest in preserving national security against the hardships caused to respondents by temporary denials of entry into the country, the balance of the equities favors the Government. I would thus grant the Government’s applications for a stay in their entirety.
And they predict what this split-the-baby resolution is going to do:
Moreover, I fear that the Court’s remedy will prove 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. See ante, at 11–12. 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 §2(c)” of Executive Order No. 13780, ante, at 11, 12.
Trump can now say that he has kept his campaign promise by getting his ban in place. Now he needs to deliver on the “extreme vetting” part instead of pushing this any further. That was the whole stated purpose for this, wasn’t it?
Of course, it’s possible that Trump might want to have the Court verify once and for all that he can refuse travelers simply by invoking national security grounds. So maybe he will keep it going just for that. Will this lead to the much-feared but over-hyped Muslim ban? Too soon to say (by rational people anyway).