The Supreme Court on Tuesday evening gave the Trump Administration permission to continue – but perhaps only for the time being – to exclude some 24,000 refugees from entering the U.S. With no indication of any dissent, the Justices granted the Administration request to put on hold a lower court ruling that would open U.S. gates to refugees who have a promise by a relief agency to be resettled in this country.
The one-paragraph order, dealing with the most immediate controversy over President Trump’s March 6 executive order on immigration, gave no explanation.
But its specific wording – and the fact that the Justices had acted on only one of a series of new requests by the Administration – suggested that the court was giving itself the option of reexamining the issue within the next few days, or perhaps later. The order said explicitly that the entry of the refugees was being allowed “pending further order of this court.”
That is the kind of language that usually is intended to treat an action as only temporary. It could mean that the Justices wanted simply to give themselves more time to analyze the somewhat complex array of legal pleas that government lawyers had made on Monday, all of which the state of Hawaii and other challengers had opposed in replies filed earlier Tuesday.
In fact, among the government’s specific requests was that the Justices act now, without any further court filings, to remove any legal barrier to the continuation of the existing temporary authority the Justices had granted in July to keep out the specific category of refugees from around the globe.
Had the court taken that action, it would have been the equivalent of a final victory for the Administration on its legal claim that those particular refugees have no right to enter the U.S.
The refugees involved are those who have no close family relatives living in this country – if they had, that would enable their entry – but do have a promise from a refugee-relief agency to resettle them once they are on U.S. soil.
The government had repeatedly argued that merely possessing such an assurance of resettlement does not give those refugees a sufficient link to this country to enable them to enter.
Last week, the U.S. Court of Appeals for the Ninth Circuit had rejected that government argument, concluding instead that a promise of resettlement is enough of a tie to make a refugee eligible to enter the country. The Supreme Court had specified, in a ruling on June 26, that the government could not exclude foreign nationals – including refugees – who do have close family in this country, or have some kind of formal tie with a U.S. entity. If did not specifically define that second category.
The state of Hawaii and others involved in challenging President Trump’s executive order had tried to persuade the Justices, as they did the Ninth Circuit Court, that a promise of resettlement qualified as a sufficient tie to America.
The Justices were considering the Administration’s latest requests about the scope of its powers to enforce the presidential order only as an interim issue, without regard at this time to whether the Trump order’s restrictions are actually valid legally or constitutionally. That broader question, on the merits of the Trump order, is scheduled to be taken up by the Justices on October 10, after the court’s new term had opened on October 2.
Aside from asking the court to rule that keeping the 24,000 refugees from entering was within the government’s powers, the Administration’s new filings this week asked it to consider granting review of that question and then to decide it as a separate issue on the merits, scheduling that to be heard along with other merits questions at the October hearing.
Several of these specific requests seemed clearly designed to give the Administration a distinct legal advantage as the Justices moved toward the review they have planned for the new term.
For now, the only definite meaning of Tuesday evening’s order is that the 24,000 foreign nationals seeking to enter the U.S. to live, with refugee status, will be kept out for now and will remain in a state of legal uncertainty until the Justices take further action.
If the order was intended to be only a temporary move, that might be explained by the fact that the court is currently in the final weeks of its summer recess, and all nine of the Justices might not have had the time to study closely what was at stake in the Administration’s requests.
The Justices were under some time pressure to act because, without prompt action, the Ninth Circuit Court was planning to put into effect promptly its ruling that the 24,000 refugees had to be admitted. That plan was put temporarily on hold Monday by Justice Anthony M. Kennedy, but that seemingly was intended only to be in effect until the full court could be handed the task of deciding what to do.
Kennedy did refer the case to his eight colleagues, and together most or all of them then crafted the order that was issued Tuesday evening.
If that order was not, in fact, intended to be temporary only, then it could be in effect until the court holds its hearing next month on the legality of the Trump order.
The new order did not deal in any way with another controversial part of the Trump executive order on immigration – the attempt to keep out at least some foreign nationals from six Mideast nations with Muslim-majority populations. The court, in orders issued on June 26 and July 19, declared temporarily that those foreign nationals with close family ties in the U.S. could not be excluded under the executive order.
That issue, though, will come up at the October hearing.
Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.