Before breaking for the summer, the Supreme Court announced that next Term it will review the appeals court decisions invalidating President Trump’s Executive Order (EO) limiting entry to the United States by nationals of six majority-Muslim countries and directing other actions with regard to immigration. The Court did not just grant review, however. It also partly lifted the preliminary injunctions against enforcement of the EO. The Court’s opinion explaining its interim action is, as the opinion itself emphasizes, preliminary. Nevertheless, it holds clues to whether and how the justices may resolve questions about the EO’s validity after full argument. It also holds the potential to create substantial uncertainty at airports and other points of entry in the meantime.
As most readers likely recall, the travel EO superseded an earlier EO that was also invalidated in the lower courts. To oversimplify greatly, the current version of the EO has four main parts: (1) It directs a review of the screening procedures for entry into the country of all non-citizens but especially those from six named countries; (2) It suspends entry into the country by nationals of those countries for 90 days; (3) It suspends entry of refugees for 120 days; and (4) It caps annual refugee admissions at 50,000.
Lower courts preliminarily enjoined the EO on two different grounds. The U.S. Court of Appeals for the Fourth Circuit affirmed a district court injunction on the ground that the EO reflected anti-Muslim animus in violation of the First Amendment’s Establishment Clause. The U.S. Court of Appeals for the Ninth Circuit affirmed an injunction against the EO upon concluding that it exceeded the authority Congress had delegated to the president.
Until a recent action of the Ninth Circuit, the government took the position that one of the district court injunctions prevented it from carrying out an internal review of its vetting procedures. Because the ostensible national security justification for the EO is to enable that review, one important question concerns timing: when did the clock start ticking and how far has it advanced?
The Ninth Circuit opinion officially allowing the government to begin its internal review did not go into effect until June 19, when that court released the mandate. But even taking that as the start date, by the time the Supreme Court receives briefs, hears oral argument, and rules, more than 120 days will have elapsed during which the review could take place, thus raising the question whether the case will be moot. The government contends that even though it is now legally permitted to carry out its review of vetting procedures, that review will be substantially hampered so long as the entry bans are stayed, because the people responsible for running the immigration apparatus cannot simultaneously carry out their ordinary functions while the review occurs. Whether the Court finds that argument persuasive could bear on both the merits and the mootness question.
Meanwhile, in their order granting review of the case, the justices asked the parties to brief the question whether the challenge to the 90-day country-based entry ban became moot on June 14. The plaintiffs argued that language in the EO commanded that result, although that same day the president issued a memorandum purporting to add “clarity” by changing the effective date on which the clocks start ticking to whenever each part of the EO goes into effect.
Hints at the Merits
The opinion accompanying the Court’s order was per curiam, that is, not attributed to any particular justice, but it appeared to speak for six of them: Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. Although they did not state a position on the merits, the remaining three justices appeared to take one.
Writing for himself and Justices Alito and Gorsuch, Justice Thomas said that he would vacate the lower court injunctions in their entirety, allowing the EO to go into full effect pending a Supreme Court merits decision. Moreover, he expressed agreement “with the Court’s implicit conclusion that the Government has made a strong showing that it is likely to succeed on the merits.”
I confess that I do not understand why Justice Thomas read the per curiam opinion to conclude that the government would likely win on the merits; on the contrary, I read the per curiam as somewhere between studied neutrality and implicit agreement with the plaintiffs—based on the fact that the Court left in place the relief granted to many of the plaintiffs. But in expressing agreement with what they characterized (even if erroneously) as the per curiam’s lean toward the government, Justices Thomas, Alito, and Gorsuch left little doubt where they will be on the merits. They will almost certainly vote to uphold the EO in full.
What about the other six justices? Much depends on the reason why the Court drew a distinction between the parts of the injunctions it left in place and those it vacated.
The Court left in place injunctions against the EO as applied to nationals of the six listed countries and refugees subject to the 120-day suspension or the cap, so long as they “have a credible claim of a bona fide relationship with a person or entity in the United States,” while allowing the EO to go into effect as against other foreign nationals. Why the difference?
The per curiam said that the balance of the equities differs for the two groups. Barring entry of people with U.S. connections imposes hardships on persons and institutions inside the United States, the Court said, while, with respect to others, the lower courts “did not conclude that exclusion in such circumstances would impose any legally relevant hardship on the foreign national himself.”
It is possible to read too much into what was likely a compromise opinion designed only as an interim measure. Yet notwithstanding that caveat, to my mind the crucial language here is “legally relevant.” The justices did not say that exclusion of, say, a potential refugee with no relationship to a U.S. person or entity imposes no hardship at all. Nor could it plausibly say that. After all, exclusion could mean the difference between safety in the United States and persecution or worse in Syria, Somalia, or elsewhere.
Why would the risk of persecution or death not be a “legally relevant hardship”? Perhaps some of the justices who agreed to the per curiam believe that legal restrictions that benefit persons and institutions inside the United States do not operate when the United States acts abroad wholly with respect to foreign nationals lacking domestic connections. The government, relying on the Supreme Court’s 1972 decision in Kleindienst v. Mandel, has argued for this approach.
But that is not the only possible basis for distinguishing persons with connections to the United States from persons lacking such connections. Another, more mundane reason, might be that the particular plaintiffs in all of the litigation against the EO were persons and institutions in the United States, and courts generally afford remedies that do not go further than the underlying violations.
Interim Potential for Confusion
In addition to drawing the general distinction between foreign nationals with connections inside the United States and those without such connections, the per curiam opinion offered a few illustrations of where and how to draw that line. A “close familial relationship” suffices. So does a job in the United States, enrollment at a U.S. school, and an invitation to lecture in the country. However, the Court warned 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.”
Those illustrations provide some guidance, but questions will arise. Is an aunt a close enough relative? How about a first cousin? A second cousin? And what “formal, document[ation]” suffices to prove an institutional relationship? Is a computer printout of a signed contract acceptable? How about an email stored on a smartphone?
Such questions are not intractable, but troublingly, they will arise in the first instance before Department of Homeland Security personnel at airports and other ports of entry. Any particular foreign national denied entry—on the ground, say, that a great-aunt is not a sufficiently close relative or that a computer printout of an accepted lecture invitation does not constitute formal documentation—may be unable to get to a federal district court before being sent away.
Accordingly, although the Supreme Court’s decision to leave in place key portions of the lower court injunctions portends potential victory for the plaintiffs, the vagueness of some of the terms in its interim order leaves too much room for the Trump administration to make mischief at the expense of too many of those plaintiffs.