June 26, 2017

Supreme Court Partially Stays Injunctions Against Enforcement of Executive Orders in Trump v. International Refugee Assistance Project and Trump v. Hawaii, Nos. 16-1436 and 16-1540.

On June 26, 2017, the U.S. Supreme Court granted the United States’ petitions for certiorari partially stayed lower courts’ injunctions in cases consolidated under the name Trump v. International Refugee Assistance Project and Trump v. Hawaii, Nos. 16-1436 and 16-1540. The Court ordered that until it issues its decision on the merits of the government’s appeal, the lower courts’ injunctions barring enforcement of the Executive Order are stayed in part. The injunctions continue to apply (and the Executive Order therefore may not be enforced) as to individuals who have a bona fide relationship with a person or entity in the U.S., but the injunctions are stayed (and the Executive Order therefore may be enforced) as to foreign nationals who lack such a relationship.

On March 6, 2017, President Trump issued Executive Order No. 13780, which cited national-security purposes and ordered a 90-day suspension of entry into the U.S. of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen. The Order also suspended refugee designations and travel for 120 days, and capped the total number of 2017 refugee entries at 50,000.

A variety of plaintiffs challenged the Order, arguing that it violated the Establishment Clause of the First Amendment and/or the Immigration and Nationality Act. Some plaintiffs are U.S. citizens or lawful permanent residents who argue that the Order denies entry to their family members. The State of Hawaii argues that the Order prevents entry by foreign students admitted to the University of Hawaii. Lower courts enjoined enforcement of several of the provisions of the Order.

The Fourth Circuit largely upheld a preliminary injunction against the 90-day suspension portion of the Order, holding that the plaintiff could likely show the Order “was motivated principally by a desire to exclude Muslims from the United States” and so violates the Establishment Clause. In a separate case, the Ninth Circuit upheld a broader preliminary injunction that also barred the refugee suspension and cap on refugee entries for 2017. The Ninth Circuit held that the Order likely exceeds the President’s authority under the Immigration and Nationality Act. The United States filed petitions for certiorari in both cases, and asked the Supreme Court to stay the lower courts’ injunctions pending a decision on the merits of the appeal.

The Supreme Court granted certiorari, agreeing to hear the United States’ appeal from the lower courts’ decisions, and ordered that oral argument in the cases be scheduled during the first session of October Term 2017 (i.e., in October of 2017). The Court also partially stayed the injunctions entered by the lower courts. The Court stayed the injunctions (thus allowing enforcement of the Order) as to “foreign nationals abroad who have no connection to the United States at all.” The Court concluded that denying entry to such foreign nationals does not burden any American party because of that party’s relationship to the foreign national, and the lower courts did not find that denying entry would impose any legally relevant hardship on the foreign national himself. The Court stated that the President’s powers to enforce this aspect of the Order “are undoubtedly at their peak when there is no tie between the foreign national and the United States.” But the Court did not stay the injunctions (thus leaving in place the bar on their enforcement) as to individuals who have “a close familial relationship” with someone already in the United States, or a relationship with a United States entity that is “formal, documented, and formed in the ordinary course, rather than for the purpose of evading” the Executive Order. The Court elaborated that, for example, students who have been admitted to the University of Hawaii have such a relationship, as does a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. But “a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and secure their entry” under the injunctions.

The Court’s order is per curiam. Justice Thomas filed an opinion concurring in part and dissenting in part, in which Justices Alito and Gorsuch joined.

Download the Order of the Court.

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