What the Supreme Court’s Travel Ban Ruling Really Means
The Supreme Court of the United States just agreed to hear the case against Trump’s revised travel ban. The president went back to the drawing board with “Travel Ban 2.0” as it has been dubbed, which effectively restricts travel from six countries for 90 days. It also halts the country’s refugee program for 120 days. The Supreme Court’s decision marks the final stop for the travel ban: either the court will allow it or it won’t.
Except, they’ve already allowed it. In an unexpected decision, the Court has allowed portions of the travel ban to take effect before they hear the case in October. The temporary decision allows the ban to apply to anyone without a “bonafide relationship” with a person or entity in the US. What does this mean?
Bonafide Relationships
The wording in the Court’s published announcement tries to make the criteria clear for who can and can’t get in. A bonafide relationship depends on two factors:
- A “close familial relationship” with someone in the US — essentially a family member in the country.
- A “formal, documented, and formed in ordinary course” relationship with a US entity like a school or business.
The family connection is pretty straightforward on paper. Any person from one of the six countries or applying for refugee status will need to prove they have some kind of connection with a person or family in the US. This is meant to avoid issues of families being divided due to the travel ban.
The relationship with a US entity is a little more difficult. It’s meant to protect individuals like foreign students and workers. The “formed in ordinary course” wording should prevent a potential loophole where business like nonprofits could actively form “relationships” to circumnavigate the ban.
Immigrant enforcement agents will ultimately be responsible for making the choice. Individual agents have the authority to grant and deny entry, so this will be an additional criterion.
On the surface, this appears to be a win-win scenario for supporters and opponents of the travel ban. The Court’s purpose for this temporary solution was in part to “balance the equities” for everyone involved. However, it’s hard not to see this as a victory for the president.
A Win for Trump
The Supreme Court has effectively favored most of Trump’s travel ban. Beyond existing relationships — which the second travel ban tried to address — the main essence of the ban can now go into effect. More importantly, this ban will be done and over by the time the Court hears opposing arguments in October.
It essentially allows the ban to apply to a vast majority of applicants and refugees without any connection to people and entities in the country. For the Trump camp, this should be considered a victory. It not only upholds a good majority of the ban, but it shows that the Supreme Court may not offer as much resistance to similar future policies.
If the president decides to enact policies like the current ban, opponents will have limited legal options to challenge. Even if lower courts strike down these types of travel bans, defending lawyers will simply kick it up the legal food chain until it is at the Supreme Court’s doorstep. The Court can always decide to not hear the case, but that will depend on the context. With five Republican-leaning judges on the court, it’s hard to say that the Supreme Court won’t favor the President.
The Ultimate Outcome
In the meantime, the “win-win” ruling may cause more headaches for the people in charge of enforcing it. When decisions are made on a case-by-case basis, there is more room for error and challenge. Some applicants may find it difficult to prove “familial connections” with people in the US. At the very least, we can expect further legal disputes and actions to arise in the next few months as the travel ban takes its course.
As usual, the future is uncertain. However, this latest ruling has given some insight into how the Supreme Court may play ball with the president in the future.
Originally published at DevAD Magazine.
