After months of legal battles in federal courts across country, the White House won a temporary respite on Monday when the Supreme Court ruled that the Trump administration could proceed with some parts of the travel ban that Donald Trump ordered earlier this year, pending arguments before the Court in the fall. Trump quickly declared victory after the Court partially reversed an injunction blocking the government from curtailing certain citizens from six Muslim-majority countries from entering the United States and freezing the U.S. refugee program.
“Today's unanimous Supreme Court decision is a clear victory for our national security. It allows the travel suspension for the six terror-prone countries and the refugee suspension to become largely effective,” the president said in a statement celebrating the ruling. He added that he was “particularly gratified” that the decision was made unanimously. However, the White House glossed over one major caveat laid out by the Court, which could turn into a political and legal headache for the administration. While the nine justices did grant the Trump administration’s request that the rulings in two lower federal courts be stayed until the high court hears the travel ban case—likely in October—they also ruled that the ban applies only to “foreign nationals who lack any bona fide relationship with a person or entity in the United States” and that the executive order “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.”
In other words, not only can travelers with valid green cards and visas from the six countries—Iran, Libya, Somalia, Sudan, Syria, and Yemen—still travel to the U.S., anyone with a “bona fide relationship” with a person or organization in the U.S. cannot be prevented from traveling, either. While refugees from those countries remain banned, the amiguous language concerning other foreign nationals means the vast majority of potential travelers may be able to make a compelling case to enter the U.S. How that language is ultimately interpreted and enforced by the Department of Homeland Security could prompt additional legal challenges, as well.
The Supreme Court order provides a few examples of what a “bona fide” relationship might look like: a foreign national who wants to visit family, traveler with an employment offer from a U.S. business, a student admitted to a university. But the definition remains otherwise unclear, leaving a legal hole big enough for lawyers to drive a fleet of trucks through. “How individuals will prove such a relationship, and whether the burden of proof will be on the government or the individuals seeking entry, remains to be seen,” Cornell University Law School professor Stephen Yale-Loehr told Bloomberg. “I predict chaos at the border and new lawsuits as foreign nationals and refugees argue that they are entitled to enter the United States.” (The Department of Homeland Security has promised to release additional details after consulting with the Justice Department and State Department.)
In the meantime, the ban itself remains temporary—blocking some travelers for 90 days and freezing the refugee program for 120 days. And the order could still be ruled unconstitutional when the Supreme Court reconvenes to hear arguments this fall. In May, a U.S. Fourth Circuit Court of appeals in Virginia ruled that the executive order violated the First Amendment as it relates to the government's establishment of religion, arguing that the ban “drips with religious intolerance, animus and discrimination.” Earlier this month, the Ninth Circuit ruled that Trump exceeded his authority by suspending “the entry of more than 180 million people on the basis of nationality,” citing his own tweets as evidence of discriminatory intent.
