US Travel Ban Allowed to Partially Proceed as Supreme Court Agrees to Hear Case

US Travel Ban Allowed to Partially Proceed as Supreme Court Agrees to Hear Case

Shortly after taking office in January, US President Donald Trump issued an executive order barring citizens of seven Muslim-majority countries from entering the US for 90 days and also freezing the admission of all refugees for 120 days, in what some interpret as an attempt to partly fulfill his campaign pledge of a “total and complete shutdown of Muslims entering the United States.” The order caused chaos at airports and was immediately subjected to numerous legal challenges, leading Trump to withdraw the order and replace it with a slightly less restrictive version in March, targeting only six countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen), and removing an indefinite ban on the admission of Syrian refugees, among other changes.

That ban, too, was quickly challenged in court, and two federal judges issued temporary restraining orders blocking it from coming into effect. The Fourth and Ninth Circuit Courts of Appeal subsequently upheld those injunctions, at which point the Trump Administration said it would seek a ruling on the travel ban from the Supreme Court. On Monday, the last day of its session, the high court announced that it would hear arguments in October in the cases brought against the ban in federal courts in Hawaii and Maryland, NPR reports. In the meantime, the court lifted the injunctions against the ban, but with a key caveat:

The justices removed the lower courts’ injunctions against the ban “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States,” narrowing the scope of two injunctions that had put the ban in limbo. … The travel ban will remain on hold for plaintiffs who challenged the executive order and for anyone who is “similarly situated,” the justices say — in other words, foreign nationals who have relatives in the U.S., or who plan to attend school or work here.

Refugees will face similar criteria, with anyone lacking connections in the U.S. denied entry. In its order, the court stated, “the balance tips in favor of the Government’s compelling need to provide for the Nation’s security.”

According to a presidential memorandum issued earlier this month, the ban is set to go into effect 72 hours after the injunctions against it were lifted, meaning it will be in force as early as Thursday, unless the administration chooses for some reason to delay it further.

Dissenters in the court’s conservative wing dissented, arguing that the court should have let the ban go into effect in its entirety rather than put the burden on federal officials to determine who does and does not have a legitimate reason to come to the US (or in the court’s words, “a bona fide relationship with a person or entity in the United States”). The Trump administration is celebrating the ruling as a victory, but the court has not ruled on the merits of the ban, and it is unclear what it will say when it hears the case in October—particularly since the temporary bans will likely have expired by the time it does so. Additional lawsuits may well arise over the unanswered question of what constitutes a “bona fide relationship” with a US person or entity.

For US companies, the main question is how the ban will affect business travel once it goes into effect. At this point, the precise implications are not yet known. The court considers a national of the affected countries exempt from the ban if they have a relationship with a US entity that is “formal, documented, and formed in the ordinary course,” including admitted international students as well as “a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience.” However, as law professor Leah Litman notes at the Take Care blog, “It’s not clear whether the injunction against the entry ban extends to someone who has applied to a university or a job, but not yet heard about whether they were accepted.”

Organizations with relationships to employees, contractors, or other individuals in the affected countries—or foreign employees living in the US who are citizens of those countries—should consult with their legal counsel before making any decisions, but might consider postponing any business-related travel by these individuals between the US and their country of origin while the ban is in place. It is also advisable to warn such employees of the risks of making such journeys for personal reasons in the coming months, as well as to reassure them that any inability to travel as a result of the ban will not harm their standing within the organization.