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Supreme Court allows limited version of Trump’s travel ban to take effect

By By Robert Barnes and Matt Zapotosky
The Washington Post
AP photo
People leave the U.S. Supreme Court building on Monday after justices issued their final rulings for the term. The high court is letting a limited version of the Trump administration ban on travel from six mostly Muslim countries take effect, a victory for President Donald Trump in the biggest legal controversy of his young presidency.

WASHINGTON — The Supreme Court approved a scaled-back version of President Donald Trump’s ban on travelers from six mostly Muslim countries Monday, agreeing to hear the merits of the case in the fall but allowing Trump for now to claim a victory in the contentious legal showdown.

The court’s unsigned order delivered a compromise neither side had asked for: It said the ban may not be enforced against those with a “bona fide” connection to this country, such as family members here or an awaiting job or place in an American university.

But it indicated that lower courts had gone too far in completely freezing Trump’s order banning for 90 days the issuance of new visas to citizens of six countries — Libya, Iran, Somalia, Sudan, Syria and Yemen — and putting the refugee program on hold for 120 days.

“The government’s interest in enforcing (the executive order) 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,” the court wrote.

In a statement, Trump called the ruling “a clear victory for our national security.”

“As president, I cannot allow people into our country who want to do us harm,” Trump said. “I want people who can love the United States and all of its citizens, and who will be hard-working and productive.”

He added that he was “particularly gratified that the Supreme Court’s decision was 9-0.”

The president said last week that the order would go into effect 72 hours after receiving an approval from the courts.

In the opinion, the court said it will consider the merits of the case — which raises fundamental questions about religious discrimination and also the president’s broad powers to protect the nation — when it reconvenes in October.

In the meantime, the court nudged the Trump administration to get on with what it said would be a temporary pause to review vetting procedures.

“We fully expect that the relief we grant today will permit the executive to conclude its internal work and provide adequate notice to foreign governments” within 90 days, the court said.

That means by the time the court takes the case up in the fall, circumstances could be quite different. Depending on the results of the review, Trump could push to extend the measure, or even make it permanent.

And the court told lawyers to address whether the court’s consideration of the case might be moot by fall.

Leon Fresco, deputy assistant attorney general for the Office of Immigration Litigation in President Barack Obama’s Justice Department, said the effect would seem to be limited to two types of visa seekers who don’t have family or other U.S. ties: those seeking to come to the U.S. as visitors, or those seeking to enter via a lottery process meant for people from countries with historically low rates of immigration to the U.S.

Anyone with a school acceptance letter, job offer or family member already here would likely be able to obtain a visa and travel as normal.

Interpretations of the court’s decision diverged widely among immigration attorneys and advocates.

Some, like the American Civil Liberties Union, suggested that the decision would allow for “only the narrowest” implementation of the travel ban, impacting very few would-be travelers from the six countries.

But other groups, such as Amnesty International USA, warned of grave consequences, such as a renewal of “chaos” at airports and an enforcement of the ban that would “tear families apart.”

Justices Clarence Thomas, Samuel Alito and Neil Gorsuch would have let the ban take effect as the Trump administration wrote it, and Thomas wrote that the court had made an “implicit conclusion that the government has made a strong showing that it likely to succeed on the merits.”

The revamped order of who is covered by the ban 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,” Thomas wrote.

Such a compromise, he wrote, will lead to a “flood of litigation” over what constitutes a “bona fide relationship.”

The proposed travel ban has been a major point of contention between Trump and civil rights groups, which say it was motivated by unconstitutional discrimination against Muslims.

Trump contends that the ban is necessary to protect the nation while the administration decides whether tougher vetting procedures and other measures are needed. He has railed against federal judges who have blocked the move.

Because the executive order was stopped by lower courts, travelers from those countries have been entering the United States following normal visa procedures. Trump first moved to implement the restrictions in January in his first week in office.

His first executive order went into effect immediately and resulted in chaos at airports in the United States and abroad as travelers from the targeted countries were either stranded or sent back to their countries.

Lawyers for challengers to the order rushed to federal courts, and the order was stayed within days. The U.S. Court of Appeals for the 9th Circuit eventually said the order could not be implemented, infuriating the president, who said he would take the case to the Supreme Court.

But instead, his administration regrouped and issued a second order in March. It added a section detailing national security concerns, removed Iraq from the list of countries affected, deleted a section that had targeted Syrian refugees and removed a provision that favored Christian immigrants.

His lawyers told courts that the new order was written to respond to the 9th Circuit’s concerns. But new lawsuits were immediately filed, and federal judges once again stopped the implementation.

A federal district judge in Maryland stopped the portion of the order affecting travelers from the six countries; a judge in Hawaii froze that portion and the part affecting the refugee programs.

Appeals courts on both coasts upheld those decisions.

The U.S. Court of Appeals for the 4th Circuit in Richmond agreed with U.S. District Judge Theodore Chuang in Maryland, who sided with opponents in finding that the ban violates the Constitution by intentionally discriminating against Muslims.

In a 10 to 3 decision, the court noted Trump’s remarks before and after his election about implementing a ban on Muslims and said the executive order “in context drips with religious intolerance, animus and discrimination.”

Meanwhile, a three-judge panel of the 9th Circuit said Trump had not adhered to federal law in which Congress gives the president broad power in immigration matters.

They said that national security is not a “ ‘talismanic incantation’ that, once invoked, can support any and all exercise of executive power.”

In both appeals courts, a minority of conservative judges had said their colleagues were making a mistake. Judges should look only to whether the executive orders were proper on their face, they said, without trying to decide whether the president had ulterior motives and defer to national security decisions made by the executive branch.

“The Supreme Court surely will shudder at the majority’s adoption of this new rule that has no limits or bounds,” wrote dissenting 4th Circuit Judge Paul Niemeyer.

Justice, Department of Homeland Security and State Department officials said they were still studying the decision to see exactly who it affected, and how it might be implemented.

When Trump issued his first travel ban, the State Department unilaterally revoked tens of thousands of visas, causing some travelers to be detained and sent away from U.S. airports.

The Supreme Court’s order would seem unlikely to re-create that chaos. Trump already had revoked and revised his first order so that it affected only the issuance of new visas, and the court left intact an even more limited version. Advocates nonetheless said they would deploy people to watch for potential abuses.

“The court’s decision threatens damage to vulnerable people waiting to come to the U.S.: people with urgent medical conditions blocked, innocent people left adrift, all of whom have been extensively vetted,” said former British foreign secretary David Miliband, president of the International Rescue Committee.

After Monday’s court ruling, Trump issued his low-key statement through normal White House channels.

That was in contrast to his thunderous Twitter offerings when courts disagreed with him. He wrote in one:

“People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” he wrote.

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