On Monday, the Supreme Court allowed Donald Trump’s travel ban to take effect, but only in part. The court’s per curiam decision found that the lower courts’ preliminary injunctions, which fully halted the key provisions of the executive order, were too broad. So the court narrowed these injunctions, ruling that the travel ban “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.” However, “all other foreign nationals are still subject to the provisions” of the order. The court also set arguments on the merits of the case for the first day of its next term—that is, early October.
In practical terms, Monday’s ruling is a qualified but significant victory for the Trump administration. The court dramatically limited the scope of the injunctions below, which had blocked the two central components of the order: One barring citizens of six Muslim-majority countries from entering the country, and another halting the refugee resettlement program while halving its size. The government may now exclude citizens from those six countries from coming into the United States unless they have some meaningful connection with a “person or entity” in the country. That rule presumably encompasses foreign nationals who have family members in the U.S., or those who are enrolled in American universities, but its scope isn’t clear at all; the issue may well be litigated.
The court’s order also allows the government to exclude refugees—even those who are already vetted and poised to resettle here—unless they have the required U.S. connections. Moreover, the government can lower the cap on refugees who enter this year, from 110,000 to just 50,000. But it may not exclude refugees with relations in the U.S., even if “the 50,000-person cap has been reached or exceeded.” These compromises ensure that tens of thousands of refugees will remain stranded abroad despite prior assurances from the government that they would soon be resettled in the United States.
Justices Clarence Thomas, joined by Samuel Alito and Neil Gorsuch, wrote separately to declare that he would’ve allowed the travel ban to take effect in its entirety. He noted that, to his mind, “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.” Thomas also accepted the government’s argument that blocking the ban “will cause irreparable harm by interfering with” the administration’s “compelling need to provide for the nation’s security.” And he fretted that “the court’s remedy will prove unworkable” by putting too much of a “burden” upon “executive officials” tasked with implementing it. That concern is not unreasonable given the deep ambiguity of the court’s decision—which, Thomas pointed out, applies to “an unidentified, unnamed group of foreign nationals abroad.”
Monday’s decision dealt only with the preliminary injunctions issued by lower courts; it did not directly address the merits of the case. The court will examine the lawfulness of the travel ban in October to decide whether it violates any federal statutes or the U.S. Constitution. After Monday’s compromise—which gives the government most of what it wants—the Trump administration should be optimistic that it will ultimately prevail.