Why the Supreme Court Decision to Temporarily Allow Part of Travel Ban Is a Mess

By handing President Donald Trump a partial victory on his executive order banning immigration from six Muslim-majority countries, the Supreme Court has immersed itself in one of the most contentious political issues of our time and complicated matters by granting part of the ban to go into effect immediately.

The court agreed to hear arguments about the ban, which was announced in March and had been struck down by two lower courts. During the 2016 presidential campaign, then-candidate Trump said he wanted a “total and complete shutdown” of Muslims entering the country until our leaders “can figure out what the hell is going on”—a reference to international terrorism but also to what the president vaguely described as hatred of America. Before the election, Trump modified his position by saying he would ban immigration from countries that were sources of terrorism.

Once in office in January, Trump limited his ban to citizens from seven countries—Iran, Iraq, Syria, Sudan, Yemen, Somalia and Libya—and suspended U.S. entry by any refugees from all over the globe. He modified the executive order in March, dropping Iraq from the list and modifying other parts of the order in an effort to appease the courts that had summarily rejected his initial order.

Federal courts have since struck down even the modified travel ban, although for different reasons. One appeals court said the president had violated the Constitution’s protection of freedom of religion for what was, in effect, a religious litmus test. A second agreed with the first and added that the president had overstepped his authority. Religion remained at the heart of the case: The 4th Circuit Court of Appeals in Richmond, Virginia, ruled that the travel ban “drips with religious intolerance, animus and discrimination.”

Now, in an unsigned opinion, the Supreme Court has said it would take up the case. In so doing, the court also partially reinstated the travel ban in a manner that three justices—who did sign their names—found to be unworkable. The full court said that persons from those countries seeking to enter the U.S. who had a “bona fide” relationship with someone here could enter the U.S. That idea is wholly unworkable, wrote Justice Clarence Thomas, speaking for himself, Justice Samuel Alito and the newest member of the court, Justice Neil Gorsuch.

Today’s compromise will burden executive officials with the task of deciding—on peril of contempt—whether individuals from the six affected nations who wish to enter the United States have a sufficient connection to a person or entity in this country,” he wrote.

“The compromise also will invite a flood of litigation until this case is finally resolved on the merits, as parties and courts struggle to determine what exactly constitutes a ‘bona fide relationship,’ who precisely has a ‘credible claim’ to that relationship, and whether the claimed relationship was formed ‘simply to avoid’ the executive order.”

Thomas and the others wanted the travel ban to go into full effect.

Whether the Department of Homeland Security can quickly establish rules and guidelines to comply with the Supreme Court’s order remains to be seen. It could leave officials from the Immigration and Customs Enforcement agency, commonly known as ICE, having to render on-the-spot decisions about whether a potential visitor has a relationship in the U.S. that passes muster with the court’s partial stay of the order.

The court will hear the case sometime after it returns in October.

The fact that the entire court was willing to take the case, and that three members wanted the travel ban immediately reinstated, represents a considerable victory for the White House.

The Department of Justice had been rebuffed in every court in which it argued for the ban from the six nations, with judges expressing various degrees of incredulity about the government’s claim that the ban was not religious in nature. The Trump administration argued that the ban had to do with the inability to vet persons from those nations because of internal strife, and had nothing to do with religion. In fact, government lawyers had been at pains not to call it a “travel ban,” insisting that it was a well-reasoned pause on immigration. President Trump in several tweets insisted it was a “travel ban,” undermining the work of the government’s own attorneys.

But Trump now seems more likely to prevail than at any time since his arguments were shot down by the judicial branch beginning in January, when courts took up the case and protesters swarmed many of the nation’s airports to prevent the executive order from going into effect. He called it a "clear victory" in a statement on Monday. By October, he could well be tweeting about his victory and thanking the justices—including Gorsuch, whom he appointed.