A MONTH ago, the US Supreme Court (USSC) allowed the partial implementation of President Trump’s travel ban while it gears up to hear arguments in October. By then, the 90-day ban on travel from six predominantly Muslim countries will be over. Traditionally, the bench does not announce such interim decisions in cases it hasn’t yet fully considered, but nothing about the travel ban litigation has been typical.
Earlier, federal judges in Hawaii and Maryland blocked the ban, ruling that the president appeared to disfavour Muslims in an unconstitutional, unjustified way. The USSC has partially blocked these rulings, while maintaining that individuals who originally challenged the ban could “continue to do so, as could a carefully defined class of ‘similarly situated’ persons with ‘close familial relationships’ to individuals” in the US, “along with institutions that can show a formal, documented, and formed in the ordinary course relationship” to a US entity. The decision for now has averted a clash between the judiciary and executive.
The USSC didn’t rule entirely in the administration’s favour. In a 6-3 vote, three conservative judges dissented but acceded to a compromise. The lead opinion stressed “the interest in preserving national security is an ‘urgent objective of the highest order’. To prevent the government from pursuing that objective by enforcing [the travel ban] would appreciably injure its interests”. In a separate opinion, three judges feared that “the court’s remedy will prove unworkable”, and the “compromise will burden executive officials with the task of deciding — on peril of contempt” who constitutes a “similarly situated” person, which would “invite a flood of litigation” over what is a bona fide relationship.
There is a battle over what is a ‘bona fide relationship’.
Both sides claimed a win. Trump called the verdict “a clear victory for our national security. It allows the travel suspension for the six terror-prone countries and the refugee suspension to become effective”. His critics said the split decision was a narrow win at best. Those challenging the ban said that most refugees and visa seekers have a connection to the US and would remain protected under the order.
Despite the narrow scope of the order, the following actions are in store. One, for 90 days, citizens from the six countries cannot travel to the US unless they show a ‘bona fide relationship’ with a US citizen or entity. Two, the ban does not apply to people who have legal visas or green cards, or those with dual citizenship travelling on the passport of a country that isn’t restricted. The administration may issue additional waivers on a case-by-case basis.
Three, refugees’ admission will be suspended for 120 days, but those already scheduled for transit to the US won’t be affected. Refugees with a ‘bona fide relationship’ would also be allowed in while others may be given waivers. Four, the number of refugees admitted for this year will be capped at 50,000, though waivers could push it higher.
Five, a review will determine whether other countries are providing information to properly vetted visa applications. Nations will have 50 days to begin providing the information requested; if they don’t, they may be included in a new travel ban. Six, a review of vetting procedures of individual visa applicants will determine which additional measures are needed. Seven, the Department of Homeland Security will expedite completion of a biometric entry/exit system for tracking foreigners visiting the US on temporary visas. Eight, the Department of State will suspend the Visa Interview Waiver Programme and resume in-person interviews for people seeking non-immigrant visas.
Jurists generally do not term the USSC’s order a victory for the White House but consider it important for the constitution’s separation of powers. There is an overwhelming sentiment that Trump’s ban is “neither wise nor necessary, but that is not an invitation for the judges to become back-seat commanders in chief”. However, it is notable that Chief Justice John Roberts managed to “corral a unanimous court for lifting nearly all of the injunctions”, implying that such injunctions “need to be issued with care, especially on national security issues where judges lack the knowledge and electoral accountability of the executive and Congress”.
“Judges can’t run roughshod over the Constitution merely because an unpopular president issued the travel orders,” said a leading conservative paper, concluding that the matter “concerns the presidency more than this particular president”. The battle lines are clearly drawn between liberal and conservative segments in the political, judicial and media arenas in the US.
The writer is former DG, FIA currently on a visit to the US.
Published in Dawn, July 30th, 2017