It appears that the Battle Royale over immigration is on. The Supreme Court issued the following order: “We grant the petitions for certiorari and grant the stay applications in part.” The Court also reversed in the state in the major religious clause case in Trinity Lutheran.
Here is the stay language: “We grant the Government’s applications to stay the injunctions” blocking the implementation of the ban “to the extent the injunctions prevent enforcement of Section 2(c).” Section 2(c) deals with the suspension of entry from six countries and “foreign nationals who lack any bona fide relationship with a person or entity in the United States.”
Here is the money quote:
“An American individual or entity that has a bona fide relationship with a particular person seeking to enter the country as a refugee can legitimately claim concrete hardship if that person is excluded,” the Court wrote. “As to these individuals and entities, we do not disturb the injunction. But when it comes to refugees who lack any such connection to the United States, for the reasons we have set out, the balance tips in favor of the Government’s compelling need to provide for the Nation’s security.”
The parties will not be affected, but it is a victory for the Trump Administration in staying those who want to come without family in the country or other bona fide relationship. As previously discussed, I believe that the odds favor the Administration in prevailing in the long run.
Here is the immigration order: Order
In Trinity Lutheran, the Eighth Circuit is reversed. Roberts wrote: “the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”
Notably, the four split on a footnote that limited the impact of the decision: “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.” Only four justices would sign off on the footnote: Roberts, Kennedy, Alito, and Kagan.
Here is the decision: Trinity Lutheran
‘CLEAR VICTORY’: Trump crows as high court reinstates key parts of travel ban; full case on for fall
June 26, 2017
In a victory for the Trump administration, the Supreme Court on Monday lifted key components of an injunction against President Trump’s proposed ban on travel from six majority-Muslim nations, reinstating much of the policy and promising to hear full arguments as early as this fall.
The court’s decision means the justices will now wade into the biggest legal controversy of the Trump administration — the president’s order temporarily restricting travel, which even Trump has termed a “travel ban.”
“Today’s unanimous Supreme Court decision is a clear victory for our national security,” Trump said in a statement. “…As President, I cannot allow people into our country who want to do us harm. I want people who can love the United States and all of its citizens, and who will be hardworking and productive.”
He added: “My number one responsibility as Commander in Chief is to keep the American people safe. Today’s ruling allows me to use an important tool for protecting our Nation’s homeland.”
The court made clear that a limited version of the policy can be enforced immediately with a full hearing to come in the Fall.
“An American individual or entity that has a bona fide relationship with a particular person seeking to enter the country as a refugee can legitimately claim concrete hardship if that person is excluded,” the court wrote. “As to these individuals and entities, we do not disturb the injunction. But when it comes to refugees who lack any such connection to the United States, for the reasons we have set out, the balance tips in favor of the Government’s compelling need to provide for the Nation’s security.”
The justices decided to review the broader constitutional issues over executive authority on immigration with oral arguments to be held in the fall.
Trump has been incensed since his original executive order, signed on Jan. 27, was partially blocked by a federal court.
“What is our country coming to when a judge can halt a Homeland Security travel ban and anyone, even with bad intentions can come into U.S.?” Trump tweeted on Feb. 4.
He added on Feb. 11: “Our legal system is broken!”
In early March, Trump issued a revised executive order — which also had key provisions blocked by federal courts.
Trump has been spoiling for the Supreme Court to take up the case and eager to get it out of the hands of what he sees as more liberal appellate judges.
Four days after signing the original ban, Trump nominated Neil Gorsuch to fill the Supreme Court seat vacated when Antonin Scalia died. Gorsuch, who has since been confirmed, is largely seen as a conservative, originalist justice in the Scalia mold and could help Trump claim an even more definitive victory after arguments.
“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,” wrote Justice Thomas, supported by Alito and Gorsuch. “The Government 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.’”
At issue is whether the temporary ban violates the Religion Clauses of the First Amendment, the Due Process Clause of the Fifth and 14th Amendments, and the ban on nationality discrimination in the issuance of immigrant visas contained in a 65-year-old congressional law.
Federal appeals courts in Virginia and California in recent weeks have ruled against the administration. A majority of the 4th Circuit appeals court cited then-candidate Trump’s campaign statements proposing a ban “preventing Muslim immigration.”
The White House, on the other hand, frames the issue as a temporary move involving national security. A coalition of groups in opposition call the order blatant religious discrimination, since the six countries involved have mostly-Muslim populations: Iran, Libya, Somalia, Sudan, Syria, and Yemen.
A major sticking point for the justices will be navigating how much discretion the president really has over immigration. Courts have historically been deferential in this area, and recent presidents dating back to Jimmy Carter have used their discretion to deny entry to certain refugees and diplomats — including those from nations such as Iran, Cuba and North Korea.
A 1952 federal law — the Immigration and Nationality Act, passed in the midst of a Cold War fear over Communist influence — historically gives the chief executive broad authority.
“Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may, may by proclamation, and for such period as he shall deem necessary,” Section 212 (f) of the law states, “suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
In his opinion, Thomas criticized the majority for the compromise nature of Monday’s ruling, indicating he would have allowed the order to be enforced in full. Thomas said he feared “the Court’s remedy” would inspire a flood of new litigation.
“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,” Thomas 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 §2(c)’ of Executive Order No. 13780.”
Fox News’ Bill Mears contributed to this report.
Monday’s decision by the U.S. Supreme Court to lift the injunction against most of President Donald Trump’s “travel ban” is a major victory — and not just because he will be able to implement the policy, but because the case is only scheduled to be heard in the fall, i.e. in October at the earliest.
Because most of the controversial provisions of the executive order only last 90 days, Trump it could be fully implemented before the Court hears the case.
The Court is prevented from hearing disputes that are already moot. There must be an active case or controversy in order for challenges to the executive order to be heard. The second version of Trump’s executive order suspends travel from six terror-prone countries for 90 days, and suspends the refugee program for 120 days. Both of those deadlines could be reached before the Supreme Court hears oral arguments, and certainly before it issues a decision.
Some of Trump’s supporters might want to have the case heard, in order to clarify the legal principles on which his executive orders were based — namely, that the President of the United States has broad discretion over immigration and that the judiciary must show deference to the executive in matters of national security. They would also like to see the dubious legal reasoning of some lower court decisions — especially the idea that campaign rhetoric can be used to discern the intent behind presidential actions — tossed aside. But the risk of being shot down by the Court may simply not be worth the trouble, given the Court’s recent penchant for inventing bizarre new legal theories.
Trump can “win” simply by following through on the executive order, then declaring it fulfilled before the Court hears the various challenges to the case, cutting the Gordian Knot of legal theories and advancing his policies.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He was named one of the “most influential” people in news media in 2016. He is the co-author of How Trump Won: The Inside Story of a Revolution, is available from Regnery. Follow him on Twitter at @joelpollak.
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