The Supreme Court of the United States announced Monday that it will review the lower court injunctions blocking enforcement of President Donald Trump’s executive order barring travel from six Muslim-majority countries.
In a per curiam opinion, the Court partially stayed the injunctions blocking enforcement of executive order 13,780:
We now turn to the preliminary injunctions barring enforcement of the §2(c) entry suspension. We grant the Government’s applications to stay the injunctions, to the extent the injunctions prevent enforcement of §2(c) with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States. We leave the injunctions entered by the lower courts in place with respect to respondents and those similarly situated, as specified in this opinion.
The Court wrote that the lower court injunctions, even accepting the First Amendment arguments against the order as likely to succeed, went too far:
[T]he injunctions reach much further than that: They also bar enforcement of §2(c) against foreign nationals abroad who have no connection to the United States at all. The equities relied on by the lower courts do not balance the same way in that context. Denying entry to such a foreign national does not burden any American party by reason of that party’s relationship with the foreign national.
The opinion also announced the Court will consolidate the cases from the U.S. Courts of Appeal for the Ninth and Fourth circuit, Trump v. Hawaii and Trump v. International Refugee Assistance Project, respectively. Both cases found the executive unenforceable as a likely violation of the U.S. Constitution’s First Amendment Establishment Clause because the lower courts held it was motivated by an attempt to disfavor Islam.
The Court had requested additional briefing from the parties in both cases earlier this month, signalling they would hear arguments on the case despite the Court going out of its regular term this week. Arguments are expected to be heard when the Court reconvenes in October. Attorney from the American Civil Liberties Union and the National Immigration Law Center are expected to face off against a government team now led by acting Solicitor General Jeffery Wall.
The government had argued in the new briefing that the injunctions had delayed the start date for the 90-day order. This would allow the ban, which effects those coming from Iran, Libya, Somalia, Sudan, Syria and Yemen, to remain valid despite having been issued in March.
A dissent from the per curiam decision, written by Justice Clarence Thomas and joined by Justices Samuel Alito and Neil Gorsuch, would have gone further and stayed the injunctions in their entirety, allowing the travel ban to go fully into effect immediately.
The executive order was the second issued on the matter. The first, Executive Order 13,769, also included Iraq and immeditaely was the subject of challenges in the courts. The current order was tailored to address the concerns raised in these initial lawsuits but soon was itself enjoined in both the Fourth and Ninth Circuits. Finding a likelihood the plaintiffs would succeed on First Amendment grounds, these courts’ decisions to enjoin the orders have heretofore prevented enforcement of the order.
Prevailing arguments in the lower courts have controversially included those based on statements made by the president and his surrogates while on the campaign trail as to his motivation for issuing the ban.
The Trump administration has been determined to defend this version of the travel ban, setting up Monday’s opinion and the potential for a Supreme Court hearing on the merits in the fall.
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