Joint decision had 3 dissenters, and it’s not who you’d think

By TATIANA PROPHET

After a clumsy rollout, a restraining order, widespread airport protests, a “politically correct” redux, the firing of the acting attorney general and two preliminary injunctions upheld by courts of appeals – the highest court in the land ruled Monday that the President has the right to bar entry to the United States for purposes of national security – with one big exception: if the entrant has a “bona fide relationship with a person or entity in the United States.”

While Trump declared victory on Twitter and claimed the decision was 9-0, the decision was actually a “per curiam” one, traditionally used when SCOTUS agrees to hear a case later or makes routine decisions – and no voting is declared. It's important to note, however, that Justice Clarence Thomas in his dissent, noted the decision was unanimous.

Trump can claim the decision was partially unanimous – total oxymoron, yes – because the dissent one would expect did not come from the liberal side. In fact, it came from the conservative members of the court, who warned that the conditions imposed on the ban (that someone with a relationship to a U.S. person or entity is exempt) could set up a host of legal challenges.

Wrote Clarence Thomas: “I fear that the Court’s remedy will prove unworkable.  Today’s compromise will burden executive officials with the task of deciding—on peril of contempt— whether individuals from the six affected nations who wish to enter the United States have a sufficient connection to a person or entity in this country. See ante, at 11– 12. The compromise also will invite a flood of litigation until this case is finally resolved on the merits, as parties and courts struggle to determine what exactly constitutes a “bona fide relationship,” who precisely has a “credible claim” to that relationship, and whether the claimed relationship was formed “simply to avoid §2(c)” of Executive Order No. 13780, ante, at 11, 12.  And litigation of the factual and legal issues that are likely to arise will presumably be directed to the two District Courts whose initial orders in these cases this Court has now— unanimously—found sufficiently questionable to be stayed as to the vast majority of the people potentially affected.”

So yes, this is a stunning reversal of rulings issued by three lower courts, allowing the ban to go into effect for 90 days for travelers from six countries – and allowing the government to conduct a 20-day global review of whether the governments of those countries provide adequate information about nationals applying for United States visas.  “Those nations identified as deficient will be given 50 days to alter their practices,” SCOTUS decision states.

The Court also granted petitions of certiorari to the administration, meaning they agree to hear arguments in October on the legal challenges to the temporary travel ban.

Read the entire decision, plus partial agreement and partial dissent from Justice Clarence Thomas, Justice Samuel Alito and newly minted Justice Neil Gorsuch.

The decision explains directives called for in Trump’s executive orders in great detail, from the signing of Trump’s first travel executive order (EO-1 in the decision) to the revised order he signed in March (EO-2 in the decision).

Essentially, the court ruled that the government had a right to suspend entry to anyone for purposes of national security, provided the entrant did not have a connection to a person or entity in the United States, the deprivation of which would cause irreparable harm to that person or entity.

“Denying entry to such a foreign national does not burden any American party by reason of that party’s relationship with the foreign national. And the courts below did not conclude that exclusion in such circumstances would impose any legally relevant hardship on the foreign national himself.  See id., at 762 (“[A]n unadmitted and nonresident alien . . . ha[s] no constitutional right of entry to this country”).  So whatever burdens may result from enforcement of §2(c) against a foreign national who lacks any connection to this country, they are, at a minimum, a good deal less concrete than the hardships identified by the courts below. At the same time, the Government’s interest in enforcing §2(c), and the Executive’s authority to do so, are undoubtedly at their peak when there is no tie between the foreign national and the United States.  Indeed, EO–2 itself distinguishes between foreign nationals who have some connection to this country, and foreign nationals who do not, by establishing a case-by-case waiver system primarily for the benefit of individuals in the former cate- gory. See, e.g., §§3(c)(i)–(vi). The interest in preserving national security is “an urgent objective of the highest order.” Holder v. Humanitarian Law Project, 561 U. S. 1, 28 (2010). To prevent the Government from pursuing that objective by enforcing §2(c) against foreign nationals unconnected to the United States would appreciably injure its interests, without alleviating obvious hardship to anyone else.

Further in the decision, the Court stated:

"An American individual or entity that has a bona fide relationship with a particular person seeking to enter the country as a refugee can legitimately claim concrete hardship if that person is excluded.  As to these individuals and entities, we do not disturb the injunction. But when it comes to refugees who lack any such connection to the United States, for the reasons we have set out, the balance tips in favor of the Government’s compelling need to provide for the Nation’s security."

When the Supremes did mention any perceived anti-Muslim animus cited in the lower courts' decisions, they did not agree with those. The primary reason for issuing their stay of the preliminary injunctions was for national security.