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Supreme Court Revives Components of Trump’s Travel Ban

The Supreme Court ruled Monday it would allow certain provisions of President Donald Trump’s Executive Order calling for a temporary ban on entry of individuals from certain Muslim nations without proper vetting. The ruling allows the temporary ban on travelers from six Muslim-majority countries and for all refugees who have no strong ties to the United States. However, the court also agreed to decide this fall to judge the legality of the order.

The revised order of the initial travel ban order issued by Trump in January was issued March 6. It limited travel from six mostly Muslim countries — Libya, Iran, Somalia, Sudan, Syria and Yemen — for 90 days, suspended the United States Refugee Admissions Program (USRAP) for 120 days and would set a refugee cap of 50,000.

Two federal appeals courts blocked key measures of the order before it went into effect March 16 as planned. Last month, the Court of Appeals for the Fourth Circuit majority ruled the temporary travel ban Executive Order on the six countries violated the First Amendment’s ban on government establishment of religion. The Court of Appeal for the Ninth Circuit also blocked both the limits on travel and the refugee program suspension as well, ruling that Trump exceeded the authority under the Immigration and Nationality Act (INA).

However, Under Title 8, Section 1182 of the US Code, the president has authority to use a proclamation to suspend the entry of “any aliens or of any class of aliens into the United States [who] would be detrimental to the interests of the United States,” for however long he deems necessary. This provision was included in the INA.

Neither of the lower courts addressed the President’s authority under the INA act which the Supreme Court indicated in its ruling today the President has the authority to do, which was a strong blow to the lower courts’ rulings which ignored this authority given to the President.

Similarly, President Obama issued a presidential proclamation in 2011 which suspended the entry of “any alien who planned, ordered, assisted, aided and abetted, committed or otherwise participated in” war crimes or other violations of humanitarian law.

The designated countries affected by Trump’s Executive Order are not explicitly named in the order, only Syria is. The other unnamed nations were designated in the Omnibus Appropriations Act of FY 2016, signed into law by Obama on December 18, 2015.

The Department of Homeland Security (DHS) targeted these seven countries as countries ofconcern. In February 2016, DHS stated “it is continuing its implementation of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 with the addition of Libya, Somalia and Yemen as three countries of concern, limiting Visa Waiver Program travel for certain individuals who have traveled to these countries. Three additional countries, Iran, Iraq, Sudan and Syria were later named by the Obama administration “as countries subject to restrictions for Visa Waiver Program travel for certain individuals.”

Furthermore, all of Obama’s top national security leaders testified they were concerned ISIS, and perhaps Al Qaeda, would try to blend in with refugees – especially from Syria – to gain entry into the US.

In light of the lower court rulings, the administration consequently asked that they be stayed while the case progressed, with the Supreme Court granting part of that request.

The justices said foreigners with connections in the US would not be prohibited from entering the country. However, those applying for visas with no relationship to or family or business in the US or have not been here before could be prohibited.

“We grant the government’s applications to stay the injunctions, to the extent the injunctions prevent enforcement … with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States,” the high court ruled.

Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented from part of the court’s ruling, stating they would prefer to stay the injunctions be stayed entirely rather than partially.

“I agree with the court that the preliminary injunctions entered in these cases should be stayed, although I would stay them in full,” Thomas wrote. “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.”

The bans are now slated to go into partial effect in 72 hours, according to a memorandum issued by the administration on June 14.

The Supreme Court said it would review the legality of the Fourth and Ninth Courts’ rulings, saying it would hear arguments in October. The court also recommended the administration complete its internal reviews over the summer so the case could be debatable by the time it was argued.

DHS said in response to today’s Supreme Court ruling that the high court "today has allowed the Department of Homeland Security to largely implement the President’s Executive Order and take rational and necessary steps to protect our nation from persons looking to enter and potentially do harm. The granting of a partial stay of the circuit injunctions with regard to many aliens abroad restores to the Executive Branch crucial and long-held constitutional authority to defend our national borders."

DHS said it "will provide additional details on implementation after consultation with the Departments of Justice and State. The implementation of the Executive Order will be done professionally, with clear and sufficient public notice, particularly to potentially affected travelers, and in coordination with partners in the travel industry."

In response to the Supreme Court unanimously agreeing to hear President Trump’s travel ban case, Rep. Jeff Duncan (R-SC) said today that, “Just as conservatives have been saying all along, when courts look at this case on the basis of the law and the Constitution, the President will win. That is exactly what happened today with the Supreme Court ordering all injunctions of the President’s travel ban lifted until the high court issues their ruling. With the President’s initial executive order being a 90 day review, and the Supreme Court taking much longer than that to rule on the case, the court’s decision practically allows the President to move forward with his national security agenda unfettered. I support President Trump’s efforts to make America safe again, and I believe his temporary travel ban is a wise precaution in these troubling times.”

Duncan said, “This case is just one of many that will be heard by the Supreme Court regarding polices enacted by the Trump administration. Because of this, I also call upon Justice Ginsberg to recuse herself from this case, and any other case involving President Trump or his policies, based on her comments to the media last year about then-candidate Donald Trump. I have joined with a number of my colleagues in writing her demanding her recusal. Justice Ginsburg has clearly demonstrated that she cannot operate in an evenhanded and impartial manner, and she should recuse herself from considering this case.”

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The Government Technology & Services Coalition's Homeland Security Today (HSToday) is the premier news and information resource for the homeland security community, dedicated to elevating the discussions and insights that can support a safe and secure nation. A non-profit magazine and media platform, HSToday provides readers with the whole story, placing facts and comments in context to inform debate and drive realistic solutions to some of the nation’s most vexing security challenges.

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