Stanford law professor weighs in on Supreme Court’s decision to hear travel ban case

Stanford law professor Jayashri Srikantiah discusses the Supreme Court’s decision to hear the Trump Administration’s appeals about Trump’s executive order banning travel of certain nationals from Muslim-majority countries.

On Monday, the U.S. Supreme Court agreed to hear the Trump administration’s appeal from the Fourth and Ninth Circuits’ decisions regarding the president’s executive order (EO) in March that banned certain nationals of six Muslim-majority countries from entering the country – Iran, Libya, Somalia, Sudan, Syria and Yemen. (The first travel ban executive order was signed on Jan. 27 and blocked by Jan. 28.)

Supreme Court

The U.S. Supreme Court on Monday said President Trump can prohibit some immigration and agreed to hear arguments on his travel ban in October. (Image credit: flySnow / Getty Images)

The U.S. Court of Appeals for the Fourth Circuit ruled in May that the revised executive order violated the First Amendment’s ban on government establishment of religion, pointing to the president’s own statements during the presidential campaign calling for a Muslim ban. The Ninth Circuit blocked both the limits on travel and the suspension of the refugee program on statutory grounds, calling it an overextension of the authority granted to the Executive by Congress.

Stanford Law School Professor Jayashri Srikantiah explains today’s decision.

Can you explain the Supreme Court’s decision?

Pending its decision, the court stayed the operation of the EO in part, while permitting other parts of the EO to go into effect. Specifically, the court stayed the EO, but only as to foreign nationals who cannot credibly claim a “bona fide relationship with a person or entity in the United States.”

Can those with ties or relationships in the U.S. travel and seek asylum here?

The court gave several examples of individuals who would be covered by the terms of the EO, but who could qualify for a stay under the “bona fide relationship” standard. The court clarified that a “close familial relationship” would exempt an individual who would otherwise be covered by the EO. Similarly, the court stated that students who have been admitted to the University of Hawaii or a worker with an offer of employment from an American company would be exempt. It remains to be seen how the “bona fide relationship” standard will play out in cases other than those enumerated by the court in its decision.

The Supreme Court’s decision said that in adding this distinction – relationships and ties – the government should be able to administer the Executive Order more easily. Did the justices speak to the First Amendment issues or other legal issues in the court of appeals’ opinions? Or will that be dealt with in the full hearing in the fall?

The court did not address the merits of the First Amendment issues or the other legal issues that formed the basis of the Fourth and Ninth Circuit decisions. We will have to wait until at least October for that.

Needless to say, the case is of great importance as to the limits of the Trump administration’s powers, and given the Trump administration’s anti-Muslim and anti-immigrant rhetoric.

Those in dissent voiced concern that the stay might prove unworkable and that it might tie the EO up in the courts. What do you see as the potential pitfalls of the stay?

It is unclear how the “bona fide relationship” standard will be applied, and it is possible that there will be confusion if the Trump administration does not explain how it interprets the Supreme Court’s stay order. Unfortunately, many of those who will be affected are abroad and it may be difficult—at least at first—to know how U.S. officers abroad are interpreting the stay’s language. And we will have to be vigilant at the airports and other ports of entry as the EO is applied to travelers that border officials determine do not have “bona fide” relationships.

Media Contacts

Jayashri Srikantiah, Stanford Law School: (650) 724-2442, jsrikantiah@law.stanford.edu

Sharon Driscoll, Stanford Law School: (650) 723-3019, sdriscoll@law.stanford.edu