The decision, with only two dissents, strongly suggests the justices believe the current version of Trump’s broad travel ban does not exceed his powers under the immigration laws and does not reflect unconstitutional religious discrimination against Muslims.
The justices issued an unsigned order Monday granting the administration’s request for a stay that would block lower-court decisions that prevented full enforcement of the ban. Justices Ruth Bader Ginsburg and Sonia Sotomayor said they would deny the request but did not spell out their reasons.
The court did not issue an opinion with the order, but usually the justices do not intervene in pending cases unless they believe the lower courts have gone wrong.
The decision vindicates a rather bold procedural move by the Justice Department and Trump’s solicitor general, Noel Francisco.
In a statement, Attorney General Jeff Sessions called the court’s decision a “substantial victory for the safety and security of the American people.”
“The Constitution gives the president the responsibility and power to protect this country from all threats foreign and domestic, and this order remains vital to accomplishing those goals,” he said.
Two weeks ago, the solicitor general filed an emergency plea with the high court urging the justices to bypass two lower courts that were weighing legal challenges to the third version of Trump’s travel order, which was issued Sept. 24.
The third version of the travel ban blocks visitors and immigrants from Chad, Iran, Libya, Somalia, Syria, Yemen and North Korea. The addition of North Korea is mostly symbolic, since the government did not expect to see visitors arriving from that country. It also limits travel for some officials from Venezuela.
Administration officials described the Sept. 24 order as measured and reasonable. No existing visas will be revoked, and people currently allowed to travel to the U.S. for other reasons will not be affected, they said. The court was advised that the countries were put on the watch list only after the administration concluded they lacked the “identity management” systems that would permit U.S. officials to spot would-be travelers who presented a “heightened risk.”
By contrast, civil libertarians and immigrants rights advocates portrayed the third travel order as more of the same: an unwarranted ban that targeted Muslims. They said U.S. officials had ample authority to deny entry to foreigners who posed a security risk. They also pointed out that the administration has had nearly a year to improve and tighten its vetting procedures.
In recent weeks, the third order had gone into partial effect based on a middle-course position the Supreme Court set out in late June. Then, ruling on an earlier version of the travel order, the justices said the administration could refuse entry for visitors and immigrants from several Muslim nations, but not to families, travelers and others who had a “credible claim of a bona fide relationship with person or entity in the United States.”
The 9th U.S. Circuit Court of Appeals, based in California, and a federal judge in Maryland adopted that standard and applied it to Trump’s latest order. They agreed the ban could go into effect in part, but not against those who had close personal or professional ties to a person or an entity in the United States. The 4th U.S. Circuit Court of Appeals, based in Richmond, Va., and the 9th Circuit are scheduled to hear arguments this week on whether Trump’s latest order discriminated based on nationality in violation of a 1965 law. The appeals courts are also considering claims that the ban reflected unconstitutional bias against Muslims.
Trump’s lawyers were not satisfied with that partial win in the appeals courts. They filed an emergency appeal Nov. 20 contending that allowing the ban to go into only partial effect “will cause ongoing irreparable harm to the government and the public.” They predicted the court would eventually uphold the order so the justices should permit the order to go into full effect without further delay.
Lawyers for the American Civil Liberties Union and the state of Hawaii filed lengthy responses urging the court to maintain the status quo while the legal claims are heard and decided.
Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, said “it’s unfortunate that the full ban can move forward now, but this order does not address the merits of our claims. We will be arguing Friday in the 4th Circuit that the ban should ultimately be struck down.”
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