JUDY WOODRUFF: This final day of the Supreme Court term has revived a controversial item on President Trump’s agenda: his travel ban. The justices announced that they will hear arguments this fall on the constitutionality of the ban.
In the meantime, they reinstated a limited version of the order, affecting travelers from six mostly-Muslim countries. Mr. Trump lauded the Supreme Court’s action today as — quote — “a clear victory for our national security,” adding: “It allows the travel suspension for the six terror-prone countries and the refugee suspension to become largely effective.”
We explore the legal and practical implications now with our regular Supreme Court watcher Marcia Coyle of The National Law Journal and Alan Gomez. He covers immigration for USA Today.
Welcome to you both.
Marcia, let’s start with you.
Let’s take this one at a time. We have got two things that the court was asked to look at by the Trump administration, first to grant review on hearing the arguments on the executive order.
MARCIA COYLE, The National Law Journal: Right, Judy.
The legal challenges to the executive order focused on basically two provisions, the 90-day travel ban from six predominantly Muslim countries and the 120-day suspension of the U.S. refugee assistance program. The government asks the Supreme Court to review two federal appellate court rulings that struck down the executive order, one, and they ruled separately, claiming that the order violated the Establishment Clause of the constitution because it was religious discrimination.
And a second ground was that the executive order exceeded the president’s authority under federal immigration law, a provision, in particular, that prohibits discrimination on the basis of nationality. The Supreme Court said it would hear arguments on the merits of those two appellate court rulings in October.
JUDY WOODRUFF: And, meantime and, separately, the justices were also asked by the Trump administration to lift the injunctions that had been imposed on the travel ban. What did they say about that?
MARCIA COYLE: Right.
OK, those two federal appellate courts had approved injunctions blocking the travel ban and the suspension of the refugee program. The Supreme Court said that the bans would be lifted only — would be applied only against foreign nationals who had no bona fide relationship with an individual or an entity in the United States.
And the court went on to explain that in terms of a bona fide relationship, it should be a familial relationship with an individual or, when it comes to an entity, a formal documented relationship, for example, a student has been accepted at a university in the United States.
JUDY WOODRUFF: So, they were imposing a — there had to be some connection already with the United States.
MARCIA COYLE: Exactly.
JUDY WOODRUFF: For these individuals.
Three justices disagreed with this partial listing. What did they say?
MARCIA COYLE: Justice Thomas wrote for the dissenters and was joined by Justices Alito and Gorsuch.
Justice Thomas explained — he was most in disagreement about the partial lifting of the injunctions against the executive order. He said it was unworkable, that it was going to create a flood gate of litigation as the government, as government officials tried to determine what is a bona fide relationship with an individual or an entity?
Those three justices would have kept — would have allowed the ban and the executive order to go into full effect.
JUDY WOODRUFF: So, Alan Gomez, let me turn to you.
You report, as we said, on immigration, travel issues. What is the immediate effect of this ruling today?
ALAN GOMEZ, USA Today: The immediate effect is that this travel ban or what’s left of it can go into effect as early as Thursday.
But it’s important to note that, once it does into effect, this is going to look very different from what we saw back in January, when President Trump first signed his first travel ban on January 27. If you remember, at the time, everybody from these countries was blocked from entering the country, so people were stranded at U.S. airports or blocked from getting onto their U.S.-bound flights overseas.
But things have changed dramatically since then. His revised travel ban allows for green card holders to travel, allows for people who hold visas to travel. And now what the Supreme Court has ordered, this establishing this bona fide relationship that Marcia was explaining a second ago, that’s where we’re going to start trying to figure out — that’s where the government is going to start trying to figure out who can come in and who cannot.
And so there’s a lot of gray area and we do expect to see some litigation about this, because it’s — it’s one thing if you have a relative in the U.S. who is trying to claim you. That person can come in. If you have a job offer from a U.S. employer, that person can come in.
But what if you’re just businessperson coming over here to have a couple of meetings on a short-term visa? Is that a bona fide relationship? If you’re a tourist who already has hotel reservations and plane reservations, is that a bona fide relationship?
That’s what we’re going to start seeing in those first couple days when the ban finally goes into effect.
JUDY WOODRUFF: And that’s my question. Just how clear are these guidelines that the justices set down? Do we assume immigration officials are scrambling today to put this in black and white to figure it out?
ALAN GOMEZ: There are a lot of attorneys within the Department of Justice and Homeland Security and the State Department and a lot of immigration advocacy attorneys who are just diving into whatever case law, whatever precedents they can find to figure out what exactly this bona fide relationship is.
The justices provided a few examples that we have cited already, if you have a job offer, if you have been admitted to a U.S. university and if you have a direct relative. But beyond that, it’s pretty much wide open now. So we’re trying to figure out what that means.
To give some context here, in 2016, about 108,000 people came to the United States legally from these six countries. From a quick accounting of that, the majority of them will still be allowed to enter the country under the guidelines set forth by the Supreme Court, because most of those were refugees, had no direct ties that we’re talking about.
JUDY WOODRUFF: Right.
ALAN GOMEZ: But once we get into some of that other visa categories that the relationship is a little bit more tenuous, that is what has to play out in the next few weeks, to see what government determines to be a bona fide relationship and whether the courts agree with them.
JUDY WOODRUFF: Very final quick question, Alan. The travel ban that was issued by the president last March was intended to be temporary while the government figured out vetting procedures.
They said it was going to take 90 days. Where does that stand?
ALAN GOMEZ: Well, that review finally started last week.
In a separate ruling, the Ninth U.S. Circuit Court of Appeals in San Francisco sort of separated that vetting review from this legal case that we’re going through right now and said that the administration can start conducting that review.
In short, what they’re trying to do is gauge what kind of information we get from foreign governments to screen people coming into the country. So they just started doing that last Monday. And so, right, the clock starts now. They have — they’re going to review it for 20 days, submit a list to the president. Then those governments will have 50 days to get off the list.
And at the conclusion of that vetting review, then the president can decide whether he wants to impose more or fewer travel restrictions against different countries around the country — or world.
JUDY WOODRUFF: All right.
Alan Gomez, USA Today, Marcia Coyle, thank you both.
MARCIA COYLE: My pleasure, Judy.
ALAN GOMEZ: Thank you.