The Supreme Court handed President Trump a broad, though temporary, victory on Monday for his controversial move to limit immigration of foreign nationals, including refugees. His Administration can begin immediately to enforce those restrictions, with what appear to be only a few exceptions.
The President’s March 6 executive order had flatly excluded the entry, for months, of all foreign nationals from six Mideast nations with Muslim majority populations and refugees from around the world. Under the court’s ruling, the only foreigners who will be allowed to seek visas and enter will be those who have a valid claim that they already have a real relationship with someone in the United States – a relative, a university, or an employer, for example. It is unclear whether that number will turn out to be in the thousands or in the millions.
The President did not win final approval of his authority to issue the restrictions, either under the Constitution or federal immigration laws, because the court put off that issue until it holds a hearing in the opening sitting of its new term in October. But the fact that the court did grant partial permission to enforcing a considerable part of the executive order was a favorable sign for the White House.
All of the Justices voted to allow some enforcement, but three would have allowed the President to enforce in full every part of the March order. They were Justice Clarence Thomas, who wrote a partial dissenting opinion, and Justices Samuel A. Alito, Jr., and Neil M. Gorsuch, who joined that opinion.
The court spoke through an unsigned opinion, which was the final ruling announced during the closing public session of the current term. The Justices will go on summer recess after issuing a final round of orders on Tuesday morning.
The six Justices who apparently supported the result, though they were not listed officially, were Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy, Elena Kagan and Sonia Sotomayor.
The ruling had all of the earmarks of a compromise, although the bottom-line is that President Trump could rightfully claim that he had won a good deal, since two lower courts had barred the key parts of the executive order as written and one from Maryland, there is a chance that it may never actually reach a decision on the validity of the Trump initiative. That is because the key parts of the executive order could expire before the court could rule on that question.
The order’s suspension of entry of foreign nationals from six Muslim nations in the Mideast is set to expire after 90 days, the suspension of entry of refugees is to expire in 120 days, and a ceiling of 50,000 refugees who may enter the country is to expire on September 30.
The time limits in the presidential order were set in order to give government agencies time to work out new and more restrictive “vetting” procedures on the entry of foreigners, as part of a policy to try to head off the arrival of potential terrorists. That process had already begun before the court issued its ruling Monday on who would be exempt from the entry restrictions.
The President could issue a new executive order, imposing further periods of suspension, and that potentially could keep the cases alive for the Supreme Court to decide.
If the court does reach a final decision on the validity of the executive order, that would end the controversy as a legal matter. If it should rule against President Trump on that question, but allows further proceedings in lower courts, it would then be up to those lower-ranking judges to sort out specifically who could qualify under the exceptions the court laid down Monday. It did not define them, and Justice Thomas protested in his dissenting opinion that the ruling will prove to be unworkable as lower courts seek to implement it. He also predicted “a flood of litigation until this case is finally resolved on the merits.”
The court’s willingness to permit at least temporarily the exclusion of foreign nationals who cannot show an existing relationship with some person or entity in the United States was based on at least partial agreement with the government’s claim that President Trump issued his March 6 order in order to protect the nation’s security.
That interest, the court’s opinion said, “is an urgent objective of the highest order. To prevent the government from pursuing that objective by enforcing [the suspension of entry] against foreign nationals unconnected to the United States would appreciably injure its interests, without alleviating obvious hardship to anyone else.”
At this point, while the Administration begins enforcing the suspensions as allowed by the court, lawyers involved in the two cases will start working on written legal briefs that will be due during the summer and early fall months. Further lower court action in these and similar cases will be on hold until after the Justices rule.
Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. 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.