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Court Allows Some of Travel Ban, Will Decide Legality Later

The court also announced decisions on immigration detention, gun rights, same-sex marriage, separation of church and state

Activists hold signs during a protest outside the White House in March against President Donald Trump’s second executive order banning travel from some Muslim-majority countries. (Alex Wong/Getty Images file photo)
Activists hold signs during a protest outside the White House in March against President Donald Trump’s second executive order banning travel from some Muslim-majority countries. (Alex Wong/Getty Images file photo)

The Supreme Court on Monday allowed the Trump administration to implement much of its revised travel ban, but also agreed to review the legality of the controversial executive order in October.

The justices lifted injunctions from two federal appeals courts that had blocked the order, which seeks to stop foreign travelers from six majority-Muslim countries for 90 days and suspends all refugees from entering the United States for 120 days. The rulings had stymied one of President Donald Trump’s major policy initiatives in his first months in office — moves that he argued are key for national security.

But the Supreme Court did limit the scope of implementing the ban signed in March. The justices ruled that the Trump administration could not enforce the ban against foreign nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen or refugees from around the world who have a credible claim of a close familial relationship with a person or entity in the United States.

That would include those seeking to enter the country to live with or visit a family member, the court wrote in a decision issued in a way that does not attribute it to any particular justice. Students who have been admitted to a university in the United States, a worker who accepted employment from an American company or a lecturer invited to address an American audience will also be admitted under the court’s ruling.

Ahead of the court’s ruling, Trump issued updated guidance earlier this month for how his Cabinet secretaries should implement the executive order if the justices opted to lift an injunction blocking the ban. Under his memorandum, sections of the travel ban allowed by the court will take effect 72 hours from the time of the ruling.

The guidance said the effective dates for the order would be changed according to the time the injunction is lifted, Trump said in a memorandum to the attorney general, director of national intelligence and secretaries of State and Homeland Security.

Looming Showdown

Justice Clarence Thomas, in a dissent joined by Justices Samuel A. Alito Jr. and Neil Gorsuch, wrote that he would have allowed the government to enforce the travel ban in full.

“And I agree with the Court’s implicit conclusion that the Government has made a strong showing that it is likely to succeed on the merits — that is, that the judgments below will be reversed,” Thomas wrote.

The decision to allow the revised travel ban happened without oral arguments and out of the view of the public. It took only four justices to agree to hear the case.

The case draws the justices into a political and legal showdown over the ban that was a key part of Trump’s presidential campaign. But it also means the 90-day ban on travelers from majority-Muslim countries will have run its course by the time the justices hear the case.

The American Civil Liberties Union, which has fought the ban in court, said it is ready. “We’ll see him in court. #NoMuslimBanEVER,” the ACLU tweeted.

The two federal appeals courts that had blocked the travel ban reached the same conclusion in different ways. The U.S. Court of Appeals for the 4th Circuit in Virginia found the ban was likely unconstitutional in how it treats Muslims, while the 9th Circuit in San Francisco found Trump’s order exceeded his authority over immigration policy given to him by Congress.

Justice Department lawyers had urged the Supreme Court, if it wouldn’t immediately allow the government to implement the executive order, to consider an appeal on an expedited schedule. The justices obliged, agreeing to hear oral arguments in October, in the first sitting after its annual three-month summer recess starting Monday.

The administration argued in its application that preventing Trump from “effectuating his national-security judgment will continue to cause irreparable harm to the interests of the government and the public.”

The revised travel ban was Trump’s response to the botched rollout of his initial executive order in January, which sparked protests around the world.

The travel ban explains that the 90-day pause in travelers from the majority-Muslim countries is necessary, in part, to make sure dangerous individuals don’t enter the United States while the president works to establish adequate standards “to prevent infiltration by foreign terrorists.”

The full 4th Circuit sided with advocacy groups who argued the order violates religious protections in the First Amendment that the government should not favor one religion over another. The 10-3 majority opinion relied on statements Trump made about on the campaign trail about a “Muslim ban” and other public comments

A three-judge panel of the 9th Circuit unanimously ruled that the president fell short of a statutory requirement to show that current protocols for entry of nationals from those countries would be “detrimental to the interests of the United States.”

Similarly, the 9th Circuit found that the challengers are likely to succeed because the executive order does not reveal any threat or harm to warrant suspension of all refugees for 120 days, and disregarded the procedures for setting annual admissions of refugees at 50,000, or less than half of the previous year.

The cases are Trump v. International Refugee Assistance Project, Docket No. 16-1436, and Trump v. Hawaii, Docket No. 16-1540.

Other Cases Decided

It was one of several decisions the court made Monday on anti-gay discrimination, religious funding from public grants, carrying concealed weapons, and detention of immigrants.

Same-sex marriage: The court agreed to hear a major religious freedom case of Colorado cake artist Jack Phillips, who challenged the state’s determination that he engaged in sexual orientation discrimination by declining to create a cake celebrating same-sex marriage on religious grounds.

The court also struck down an Arkansas law on Monday that allowed state officials to omit from birth certificates the female spouse of a mother, a difference in treatment for same-sex marriages that the justices ruled runs afoul of the Constitution.

Separation of church and state: The court ruled, 7-2, that Missouri can’t exclude religious groups from public grant programs only because of their religious status, siding with a Lutheran preschool and daycare in a closely watched case about the separation of church and state.

Detention of immigrants: The court did not decide on a closely watched case on whether immigrants detained for months or years during removal proceedings are entitled to a hearing to ask a judge for release. Instead, the court will hear the case again next year when new Justice Gorsuch can participate.

Gun rights: The court decided against reviewing a major gun rights case in which a federal appeals court ruled that there is no independent Second Amendment right to carry a concealed weapon.

The U.S. Court of Appeals for the 9th Circuit ruling allows sheriffs to interpret the need for an applicant to show “good cause” for concealed-carry licenses to deny an application on any grounds they choose.

Dean DeChiaro contributed to this report.

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