Monday morning, the Supreme Court reinstated some, but not all, of Donald Trump’s Muslim ban.
In the course of their opinion they created a distinction that the Court’s most conservative members rightly criticize as “unworkable.” They also appear to wade into a problem very much at the periphery of this case, while leaving the core question of whether Trump’s ban violates the Constitution largely unaddressed.
The core holding of the Court’s opinion in Trump v. International Refugee Assistance Project is that the lower court orders halting the Muslim ban altogether were too broad. Instead, the Court explains in an unsigned order joined by six justices, the ban is now only halted with respect to “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.”
Such a relationship may be a close family member in the United States, or a job offer from an American company, or an invitation to lecture an American audience, or an offer of admission from an American university.
Yet, while the Court does list several examples of what constitutes “a bona fide relationship with a person or entity in the United States,” as Justice Clarence Thomas points out in dissent, this new rule “will invite a flood of litigation until this case is finally resolved on the merits,” as lower courts struggle to make sense of the Court’s order in individual cases.
Beyond this temporary holding, which will undoubtedly lead to at least some people being excluded from the United States, the Court announced that it will conduct a full hearing on the case, and eventually resolve the legality of the ban. Monday’s opinion gives clues in both directions regarding how the Court will eventually see this case.
Thomas’ opinion, which is joined by Justice Samuel Alito and Neil Gorusch, who occupies a seat that Republicans held open for a year until Trump could fill it, telegraphs that there are at least three votes for the Muslim ban. “The Government has made a strong showing that it is likely to succeed on the merits,” Thomas writes, and it “has also established that failure to stay the injunctions will cause irreparable harm by interfering with its ‘compelling need to provide for the Nation’s security.’”
The majority opinion, moreover, offers no hint that Trump acted in bad faith when he claimed that his Muslim ban is justified by national security concerns. To the contrary, it concludes in a section explaining why people with sufficient connection to the United States are treated differently than other individuals, “the Government’s interest in enforcing [the ban], and the Executive’s authority to do so, are undoubtedly at their peak when there is no tie between the foreign national and the United States.”
Nevertheless, it is significant that six justices did not join Thomas’ dissent — including Republican-appointees Chief Justice John Roberts and Justice Anthony Kennedy. It is also possible — even likely — that the Court issued the somewhat confusing decision it handed down Monday because it wanted to address a broader problem within the judiciary that is only tangentially related to the Muslim ban.
During the Obama administration, President Obama’s opponents often shopped around for a judge who was not only likely to go out on a limb to rule against a major Obama-supported program, but who was often willing to issue a nationwide injunction against the program. Shortly after Trump moved into the White House, liberal groups demonstrated that two could play at this game.
Monday’s order in International Refugee Assistance Project is short on analysis of the legality of the Muslim ban itself and long on criticism of the lower courts for issuing overbroad injunctions. The justices, in other words, appear to be signaling to litigants and judges that it is time to put an end to the game of forum shopping and sweeping national injunctions.
As a final wrinkle, it is worth noting that key provisions of Trump’s Muslim ban order, by its own terms, expire after it’s been in effect for 90 days. The Court’s order not only agrees to hear this case, it also asks for briefing on whether the case is moot once that clock runs out.
It is possible, in other words, that the Court will say nothing at all about the legality of the Muslim ban, and that this case will only provide an opportunity to warn lower court justices away from broad injunctions.