Musings on Today’s Travel Ban Decision by the Supreme Court

June 26, 2017

by Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar & Clinical Professor of Law; Director, Center for Immigrants’ Rights Clinic, Penn State Law

On June 26, the Supreme Court agreed to hear cases involving the travel ban and also reinstated portions of the ban. Specifically, the Court will hear the case during the October 2017 term and also allow sections 2 and 6 of the travel ban to be applied to foreign nationals “who lack any bona fide relationship with a person or entity in the United States.” This outcome is both disappointing and confusing.

The travel ban (sometimes known as a Muslim Ban) refers to an Executive Order signed by President Donald Trump on March 6, 2017. This Executive Order is the second of its kind and among other provisions, suspends the entry of foreign nationals from Iran, Libya, Sudan, Somalia, Yemen and Syria for a period of 90 days; freezes the refugee admissions program for a period of 120 days; and slashes the refugee numbers by one half. The litigation around Muslim Ban 2.0 was immediate and resulted in two federal court decisions blocking the most controversial portions of the travel ban. These decisions were upheld by appellate courts. On June 1, the government filed papers in the Supreme Court appealing these decisions and also asking it to reinstate the travel ban.

The June 26 decision opens with a history of the travel ban and the constitutional and statutory arguments made before the federal courts. The prevailing constitutional argument raised was that the travel ban violates the Establishment Clause of the First Amendment. The primary statutory argument surrounded whether the travel ban violates a section of the Immigration and Nationality Act that prohibits discrimination with regard to the issuance of immigrant visas.

In granting a partial stay, the Supreme Court has determined that individuals from the six countries (all of which have Muslim populations of more than 90 percent) and all refugees can be blocked from entering the United States if they lack the requisite relationship to a person or organization. Today’s ruling includes the following examples of what might constitute a “bona fide” relationship:

For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience.

Regrettably, these examples will not resolve the confusion this decision promises to cause to impacted individuals, employers, agencies, consulates and other officials responsible for determining the term “bona fide.” Even the dissent, in arguing that that the stay should have been granted in its entirety opined “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.” As a law professor on a campus with students and scholars from all six countries listed in the ban, I am concerned that this bureaucracy alone will harm those seeking to study and work in the United States.

The Supreme Court also overstates the significance of the travel ban’s “waiver scheme” when it states “Indeed, EO–2 itself distinguishes between foreign nationals who have some connection to this country, and foreign nationals who do not, by establishing a case-by-case waiver system primarily for the benefit of individuals in the former category.” As I have analyzed earlier, waivers are more cumbersome than meets the eye and only delay admission. In fact, a federal district court in Maryland said as much when it stated “[A]lthough some of the Individual Plaintiffs' relatives may be eligible for a waiver under the Second Executive Order, because the waiver process presents an additional hurdle that would delay reunification, their claims are ripe.”

While the fate of the travel ban case is uncertain, what is crystal clear is the long journey ahead. It will be important to ensure that the administration does not step outside the scope of the stay or define “bona fide” arbitrarily or unfairly.