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On Monday, the Supreme Court issued a fascinating compromise on President Donald Trump’s ban on travel from six mostly Muslim countries. Here are six important points about the ruling:
1. There will be a Supreme Court decision on the travel ban sometime within the next year.
The decision reinstates some parts of President Trump's revised travel ban, but does not make a final determination about the legality of the ban. The Supreme Court hears and decides cases only between October and June. Today’s order means that a more substantive decision will occur sometime between October 2017 and June 2018.
As background, this comes after President Trump's January executive order that immediately stopped all citizens of seven Muslim-majority countries from entering the United States. It also put a pause on the entry of refugees and indefinitely barred all Syrian refugees. The first order created immediate chaos: Travelers returning from trips abroad were detained at American airports and airlines leaving these countries removed ticketed passengers from their planes. Lawsuits began, and the 9th U.S. Circuit Court of Appeals stopped the executive order from going into effect.
In March, Trump issued a second executive order which he called a “watered down" travel ban. This version repealed the earlier version and attempted to cure legal deficiencies. Most notably, it limited the named countries from seven to six (Iran, Libya, Somalia, Sudan, Syria and Yemen) and clarified that the order cannot apply to green card holders. The second version also tried to clean up the charges that it was borne out of anti-Islamic animus by scrubbing a preference to admit Christians, taking out an indefinite ban on Syrian refugees and adding explanations of why these six countries are especially prone to import terrorism.
2. The remaining population impacted by the second travel ban is a very small one.
In Monday's decision, the Supreme Court carved up the existing injunctions on the travel ban. Now, any citizen from the named six Muslim-majority countries who has a “credible claim of a bona fide relationship with a person or entity in the United States” cannot be denied entry. The Court’s examples included family members of persons living in the United States, employees with an offer from or position with an American company and students who attend a college or university.
This means that only people from the six countries who are true strangers — someone with no past, current or future tie to the United States — can be denied a visa to come. As a practical matter, these criteria are currently used by consulates when deciding to issue any visa. Also, for years, U.S. law has directed the consulates to rigorously screen all applicants for any past or future criminal or terrorist activity. There is debate over whether the travel ban will stop terrorists. But it most certainly will now stop potential tourists from visiting. And it will not block entry of doctors, students, employees and family members of those in the United States.
3. This decision will water down the government’s justification for having the travel ban.
Back in January, the Trump administration stopped non-citizens and refugees from entering the country mid-flight because, they said, national security interests mandated undertaking an exhaustive review of systems that determine how consulates give visas. The Supreme Court clarified that this requested review may commence immediately, as of June 24, 2017. Because this review will be final before the Supreme Court hears arguments, what the Trump administration finds and changes will likely influence the justices’ views on whether the stated national security reasons are pressing or not.
4. Justice Neil Gorsuch will not be a swing vote.
The justices did not identify who authored or agreed with the order (which they are permitted to do). But Justice Clarence Thomas wrote a dissent, and was joined by Justice Samuel Alito and Justice Gorsuch. These three justices announced that they would have reversed all earlier decisions and let the travel ban go into full force today. This very much appears to be a signal that Justice Kennedy and Justice Roberts will decide the fate of the travel ban.
5. The Supreme Court will address several potential legal issues in their decision.
These issues will include whether the travel ban is constitutional (is it driven by anti-Islamic animus?); whether it violates immigration law (does it unlawfully discriminate by determining all people from a certain nation would be denied entry?); what is the legal significance of President Trump’s tweets (are they official statements of the U.S. government?); and ultimately, who the president can deny from entering the United States (which foreigners have a sufficient relationship to an American person or entity to ensure protection?).
6. President Trump has shown that his long game on immigration policy is not actually grounded in legal changes.
Trump has not introduced any legislation. His two other executive orders on immigration enforcement measures have yet to be fully funded or survive all legal challenges. (The Senate will almost certainly deny funding to the southern border wall; a district court completely struck down the punishment on sanctuary cities.)
But what the Trump administration has succeeded in is creating a climate of fear and hostility that is a break from the past. For instance, since Trump’s election, international students in sizeable numbers are not seeking educational opportunities at American colleges and universities. The Latino populations in Los Angeles, Houston, Dallas, Denver and Philadelphia have reported significantly fewer crimes such as rape and domestic violence.
The costs from driving away all immigrants are dire. The New York Times has estimated that the loss of immigrants who are the workers, taxpayers and entrepreneurs supporting our economy will “reduce the domestic product by $1 trillion.” As an example, we are facing a shortage in hospitals. Currently, 25 percent of all doctors are foreign-born, and 8,400 alone are from Syria and Iran.
The losses from excluding immigrants are not simply economic. Abu Romman, a Jordanian citizen, and son of a man who graduated from the University of Illinois, no longer wishes to return to the United States. He grew up being told by his father that “America is the land of justice, land of opportunities, of generosity. That there are very kind people.” But after being erroneously turned away under the Trump administration’s travel ban, Romman observed that his father’s America is in the past. “I think things have changed.”
The travel ban then is not simply a legal question. In the world of Donald Trump, this is negatively affecting America’s brand. The travel ban then is an indictment of who we are as a country, who we will let enter and who we will become as a nation. The Supreme Court will have plenty to debate, parse and interpret when adjudicating the scope and legality of the travel ban. But because it is an executive order, Congress could endorse or repeal the travel ban tomorrow. For those who see more harm than good, it is Congress that could — and arguably should — have the final say.