The U.S. Supreme Court has granted review of both the 4th Circuit and 9th Circuit injunctions against President Donald Trump’s revised executive order banning the travel and entry of individuals from six Muslim-majority countries (Iraq, Libya, Somalia, Sudan, Syria, and Yemen) and suspending all refugee admissions. And in a highly unusual action, the Court also granted a partial stay of those injunctions, allowing a partial implementation of the executive order during the Court’s review of the lower court decisions. While the executive order will continue to be enjoined for any individuals from the six countries “who have a credible claim of a bona fide relationship with a person or entity in the United States” (for example, family members, students, other temporary nonimmigrants coming for a business reason, etc.) but may be implemented against any other individuals from the six named countries. In an unnecessary aside, the Court also states that “a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.” Even more confusing, the Court also applies this “relationship” test to refugee admissions, continuing to permit entry for refugees who can establish such relationships to individuals or entities in the U.S., but allowing the implementation of the executive order temporarily suspending admission for refugees who cannot.
The action is unusual because rather than granting President Trump’s requests to stay both injunctions pending review (which would have been the action that Justices Thomas, Alito, and Gorsuch would have taken, as they outline in their concurring and dissenting opinion), the Court reaches into the merits of the injunctions and the lower court decisions to separate out which sections of the executive order remain enjoined and which sections can be implemented. For a court dominated by justices with conservative judicial philosophies of not making or re-writing laws, this action reflects extreme judicial activism, essentially re-writing the executive order for the President (which incidentally, all the lower courts declined to do, citing the flaws in drafting as part of the rationale for the injunctions).
The Court ordered hearing on the cases at its first week of October 2017 session but will not otherwise expedite its consideration of the cases.
Ignatius Bau 