Margulies, Peter

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The Travel Ban in the Supreme Court: Crafting a Workable Remedy

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Roger Williams UniversityDOCS@RWULaw Faculty Scholarship Law Faculty Scholarship6-26-2017The Travel Ban in the Supreme Court: Crafting aWorkable RemedyPeter MarguliesFollow this and additional works at: http://docs.rwu.edu/law_fac_fsPart of the Immigration Law Commons, President/Executive Department Commons, and theSupreme Court of the United States CommonsThis Article is brought to you for free and open access by the Law Faculty Scholarship at DOCS@RWU. It has been accepted for inclusion in LawFaculty Scholarship by an authorized administrator of DOCS@RWU. For more information, please contact mwu@rwu.edu.Recommended CitationPeter Margulies, The Travel Ban in the Supreme Court: Crafting a Workable Remedy, Lawfare ( June 30, 2017, 3:24 PM),https://www.lawfareblog.com/travel-ban-supreme-court-crafting-workable-remedyTRAVEL BANThe Travel Ban in the Supreme Court: Crafting a Workable RemedyBy Peter Margulies  Monday, June 26, 2017, 3:24 PM While President Trump’s revised Refugee Executive Order (EO) has been in the headlines for over three months, the Supreme Court just putits stamp on the case with equitable principles that go back centuries. In a per curiam order that stressed the age-old concept of balancingequities, the Court granted certiorari and stayed parts of the preliminary injunctions against the revised EO af½rmed by the Fourth andNinth Circuits, leaving in place the injunctions as they affected foreign nationals who have a “credible claim of a bona ½de relationship witha person or entity in the United States.” In crafting this remedy, the Court recognized the interests of U.S. citizens, lawful permanentresidents (LPRs), and entities in preserving the continuity of relationships with persons abroad. At the same time, the Court acknowledgedthe government’s “compelling need to provide for the Nation’s security.”  In its listing of questions to be addressed by the parties, the Court added the issue of whether the legality of the revised EO was moot as ofJune 14, on the date it was originally supposed to expire. The Court’s added question seems at ½rst blush to be at odds with PresidentTrump’s June 14 memorandum extending the EO’s operation, and with the terms of the stay granted by the Court, which allowed signi½cantparts of the EO’s travel restrictions and other provisions to go into effect. However, the Court’s ¾agging of this issue highlights thatmootness questions will certainly interest the Court when it hears argument on the case during the next Term.By October, the travel restrictions in the EO, which last 90 days for the six countries subject to the ban (Iran, Libya, Somalia, Sudan, Syria,and Yemen) will have run their course. Time will be also likely be up on the EO’s 120-day restriction on admission of refugees. In addition,the clock will have run out on the EO’s provisions requiring assessments of the adequacy of antiterrorist screening measures and discussionwith the six listed countries about any new or different information the U.S. will need for visa processing. The Justices will want to hear fromthe parties about why the Court’s stay and the terms of the EO have not effectively obviated the need for the Court to address further thelegal issues in the case. Each side may argue for its own reasons that the question of the EO’s legality is “capable of repetition yet evadingreview,” the classic response to mootness arguments. The Justices’ receptivity to that rejoinder may hinge on whether the process ofimplementing the Court’s stay is orderly, or chaotic in the manner of the original EO’s January rollout.The stay issued by the Court is also notable for what it did not include: any discussion of the constitutional issues raised by the EO’schallengers, including the Establishment Clause argument. This omission might be a product of the Court’s determination to narrow theissues relevant to a stay. Or it might be a re¾ection of a view held by a majority of Justices that the Establishment Clause is a vehicle ill-equipped for traversing the shifting landscape of foreign affairs (see Josh Blackman’s post here). The Court’s citation to Haig v. Agee (1981),in which the Court rejected a First Amendment challenge to revocation of the passport of a U.S. intelligence agent who wished to travelabroad, suggests the latter view. The Court’s citation to Haig v. Agee may trouble those who doubted the national security basis for therevised EO. Moreover, the EO’s critics will surely also be troubled that the Court’s stay permits the government to pause in the grant ofrefugee status to individuals abroad who may have a well-founded fear of persecution.The approach to balancing the equities taken by the Court re¾ects time-honored equitable principles outlined by Chief Justice Roberts in hisopinion for the Court in Nken v. Holder (2009). As Justice Frankfurter, one of the Court’s historic champions of judicial restraint, noted in adecision cited by Chief Justice Roberts in Nken, balancing the equities is a process “as old as the judicial system of the nation.” Indeed, theequitable discretion that both Roberts and Frankfurter found to be inherent in the Judiciary Act of 1789 was already well-established as“part of the traditional equipment for the administration of justice.” That balancing re¾ects a concern with crafting a decree that respectslegitimate interests on all sides of a dispute. Avoiding gratuitous hardships to any party is part and parcel of the equitable discretion thatJustice Frankfurter extolled.    Whatever the revised EO’s ¾aws as policy (see my post here), the Court has appropriately balanced the equities here. As Haig v. Ageesuggests, the judiciary should extend a measure of deference to the executive branch’s view of national security, given the executivebranch’s superior access to information and accountability to the people. That deference is not a singular prerogative of President Trump;rather, it is a function of the separation of powers that the Framers envisioned. Particularly when dealing with individuals such as applicantsfor refugee status abroad, the Court rightly observed that the government’s interest and executive power are “at their peak.”To be sure, that deference is not absolute, as evidenced by the Court’s capacious carve-out for foreign nationals asserting a “credible claim ofa bona ½de relationship with a person or entity in the United States.” As a practical matter, this carve-out will allow regular visa-processingfor individuals eligible for a family-based visa, such as the spouses, parents, children, and siblings of U.S. citizens (LPRs can also sponsorspouses and children). It will also allow regular visa-processing for individuals admitted to U.S. colleges and universities, hired to work atU.S. companies, and invited to speak by U.S. groups. It will not include most overseas applicants for refugee status, who do not ½t under anyof these rubrics and lack any previous ties to the United States. In other words, the stay is tailored to the interests of U.S. persons andentities alluded to in Justice Kennedy’s concurrence in Kerry v. Din (2015).One wrinkle to watch is how the government implements the Court’s stay. Here the government has two alternatives. First, consider that thewaivers established in section 3(c) of the revised EO cover virtually everyone included in the Court’s decree. The government could set up awaiver-like process, requiring U.S. citizen and LPR sponsors or foreign national bene½ciaries to furnish evidence documenting a “credibleclaim” of a qualifying “bona ½de relationship” with a U.S. citizen, LPR, or entity. The down side of this kind of process is its potential forlitigation about what counts as a “credible” claim. Justices Thomas, Alito, and Gorsuch wrote a partial dissent from the Court’s stayexpressing concern about the potential for a “¾ood of litigation” on such issues.While the concern expressed in the partial dissent by Justices Thomas, Alito, and Gorsuch is legitimate, the government’s wisest coursestrategically is to streamline its determinations about who quali½es for the stay. Making U.S. family members, companies, and colleges jumpthrough bureaucratic hoops could tilt the Court against the government on the merits, if the Court gets past the mootness inquiry nextTerm. In contrast, a simple and straightforward procedure would reinforce the trust in the government re¾ected by the Court’s cite to Haig v.Agee. Ideally, the government could simply issue an instruction to all consulates abroad to resume normal visa-processing for all claimedbene½ciaries of family, employment, education, and related visas. Normal visa-processing already includes ensuring that each bene½ciary isin fact the person he or she claims to be, possessing the relationship with a U.S. person or entity that provides the basis for the visa request.Therefore, ordinary visa processing will allow the government to comply with the Court’s stay, without the headaches of a separate,duplicative procedure.In sum, the Court’s stay order respects the government’s legitimate interest in safeguarding national security as well as the challengers’interest in maintaining relationships that are important to citizens, LPRs, and U.S. entities. Justice Frankfurter could not have balanced theequities better!Topics: Travel BanTags: immigration, refugeesPeter Margulies is a professor at Roger Williams University School of Law, where he teaches Immigration Law, NationalSecurity Law and Professional Responsibility. He is the author of Law’s Detour: Justice Displaced in the BushAdministration (New York: NYU Press, 2010).

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The Travel Ban in the Supreme Court: Crafting a Workable Remedy

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