Tuesday, June 27, 2017

SCOTUS gives Trump a partial win on his (revised) travel ban

The Supreme Court handed down a decision on the Trump administration's appeal to restore its ban on travel from six countries.   So what does the decision mean?

To review:   Trump's first travel ban that created such airport chaos a few months back was blocked by two different appellate courts.   So they withdrew that version and rewrote a second version, based on some of the criticisms of the court.

Lawsuits were filed to put a stay on the new version, and two more appellate court decisions blocked this version too.   So the Trump administration appealed to the Supreme Court.

The decision yesterday was on whether to lift the stay, which the lower courts had imposed, pending the decision on the constitutionality of the ban itself.   Arguments on that will be heard by SCOTUS in October.

The decision was 6 to 3 to partially lift the ban in the meantime.   The four liberal justices, plus Roberts and Kennedy were the majority for a partial lifting of the ban.   Thomas, Alito, and Korsuch wanted to lift the stay completely, pending the hearing -- i.e. to allow the full ban to take effect now.

So, what exactly will this do?   The government will now be able to bar citizens from Iran, Libya, Somalia, Sudan, Syria, and Yemen from entering the US for a period of 90 days (120 days for refugees) -- unless they already have a valid visa.  The court further said that visas should be issued to those who have a "bona fide relationship" with a person or organization in the US.   This means people visiting family, students coming to school in the US, or someone with a job,   About the only ones who will be barred are tourists -- or, possibly, terrorists.   But what about an academic coming for a conference?   A businessman coming to negotiate a deal?

The written decision also prodded the Trump administration to get on with doing the evaluation of the vetting process, which was supposedly the reason for asking for the temporary ban in the first place.   It further suggested that -- given that they originally asked for 90 days to accomplish that -- it's quite likely that, by the time of the court hearing in October, the whole matter of the temporary ban will be moot.

One problem with this, as pointed out by the dissent written by Justice Thomas, is that what counts as a bona fide relationship is likely to be disputed and lead to multiple lawsuits to settle the question.   This is even more likely when it comes to refugees.   They are less likely to have established relationships or jobs in this country.   And the decision specifically ruled out the sponsoring refugee agency as filling that requirement.

This constitutes some vindication for President Trump, although the real ruling will come after the substantive hearing in October.   That isn't stopping Trump from trumpeting his victory.  However, the lawyer who argued the case before the 9th circuit appeals court saw it differently.  He said that the court's exemption of those with visas and those with a bona fide connection really takes care of the ones they were mostly concerned about in the appeal.   So he saw it as a positive outcome.

Remember, however, that this is all about a temporary, 90/120 day delay.  The real decision in this case has to do with the constitutionality of setting up the ban to start with.   The question is whether it was based on religious discrimination.

In writing this, I relied for information on a Washington Post article by Matt Zopotosky and one on vox.com by Dara Lind.

No comments:

Post a Comment