The Supreme Court on Monday partially lifted the injunction on President Trump’s ban on entry for nationals of six Muslim-majority countries, allowing it to take effect except for in the cases of "foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States."
The ruling indicates that students admitted to U.S. universities, workers with job offers from U.S. companies and lecturers with invitations to address American audiences all would qualify as having such a "bona fide relationship," and therefore would not be subject to the reinstated travel ban.
The nation’s highest court agreed to hear arguments in October over Trump’s executive order barring travel for 90 days for nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen. In indicating it will fully consider the merits of the case at that point, the court also directed the parties involved to address the question of whether the dispute over the 90-day ban has become moot.
The Supreme Court opinion partially overturns injunctions upheld by two lower courts blocking enforcement of the travel ban, in one case on the grounds that it amounted to religious discrimination, in violation of the Constitution, and in the other on the grounds that the president had exceeded his authority under the Immigration and Nationality Act in issuing it.
The Trump administration has justified the March 6 order -- which also suspended admission of refugees for 120 days -- as needed to prevent the entry of terrorists into the United States while the government conducts a review of screening and vetting procedures. Civil rights groups have condemned the travel ban as a pretext for barring the entry of Muslims, a step Trump called for in his campaign. Many higher education groups also have spoken out against the ban, arguing that it undermines principles of inclusion and internationalism in higher education and could prevent talented students and scholars from the six countries from coming to U.S. campuses.
The good news for universities is that international students and scholars who can establish a “bona fide relationship” to an American university should still be able to travel to the U.S. even with the Supreme Court's partial stay of injunctions imposed by two lower courts. In ruling that the ban on travel “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States,” but that it can be applied to all other foreign nationals, the Supreme Court goes some way toward defining what such a bona fide relationship would look like -- and specifically mentions as an example students admitted to the University of Hawaii. (The state of Hawaii is a plaintiff in one of the cases under consideration by the court.)
“A foreign national who wishes to enter the United States to live with or visit a family member … clearly has such a relationship,” the unsigned ruling states. “As for entities, the relationship must be formal, documented and formed in the ordinary course, rather than for the purpose of evading [the executive order]. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience.”
The American Association of State Colleges and Universities described the Supreme Court opinion as “welcome news for colleges and universities … The court specifically recognizes the status of admitted students and employees as constituting such a bona fide relationship. We expect that the administration will comply fully with the court's ruling in its visa decisions and hope that citizens of the countries in question will continue to participate in, and contribute to, American higher education as appropriate.”
Still, immigration lawyers and international education professionals expressed concern about continued uncertainty and confusion over the travel ban -- and a potential chilling effect on would-be applicants.
Continued Confusion and Uncertainty
“This order is going to create a lot of confusion,” said Stephen Yale-Loehr, a professor of immigration law practice at Cornell University.
“On the one hand, the Supreme Court expressly indicated that a student who has been admitted to a U.S. university should be deemed to have a kind of bona fide relationship required to be able to enter the United States. The court also indicated that a lecturer invited to address a U.S. audience at a college should be allowed to enter. But much will be left to the discretion of consular officers at U.S. embassies overseas and to Customs and Border Protection officials at ports of entry.”
Mark Hallett, the senior director for international student and scholar services at Colorado State University, said of the opinion that "the language is good; it comes down to the implementation." Hallett said he'd be closely watching how admitted students from Iran -- which sends more students to Colorado State than the other five countries -- will fare in the visa application process this summer.
“The wording of the SCOTUS decision makes me cautiously optimistic that this is a group that’s sort of protected rather than temporarily suspended from travel,” Hallett said. “The optimistic part is the language [of the court order]. The cautiously part is what is going through the mind of the consular officials as they are vetting these visa applicants. There’s already been an awful lot that they’ve had to think about -- the broader context of issuing a visa, and security concerns over the last how many years -- but on top of that, you have a new administration who has expressed a very tough stance that we’re not doing enough. So does that make it a little bit harder now for the consular officials to say, ‘Yeah, I’m confident about this one’?”
Trump has called for what he describes as "extreme vetting" of visa applicants in order to better screen for would-be terrorists. The executive order under consideration by the Supreme Court involves the second of two travel bans that the president issued: the first order, which has since been revoked, differed from the second in that it applied not only to new visa applicants but also to current holders of visas, and covered a seventh country, Iraq. Some students and scholars from the affected countries who happened to be overseas at the time the first order was signed -- it went into immediate effect Jan. 27 -- found themselves stranded outside the country, while those who were here reported feeling stuck, unable to return to their campuses if they were to travel abroad for personal or professional purposes.
"It looks like our students and scholars and faculty would meet that definition of a bona fide connection or relationship, but when the first executive order was signed, it was just chaos," said Adam Julian, the director of international student and scholar services and outreach at Appalachian State University and chair of a NAFSA: Association of International Educators subcommittee on travel.
"We’re working under the assumption that lessons have been learned and the consular affairs division of the Department of State and CBP will have some information and know how to handle this when they’re faced with students. That’s the wait and see -- what’s going to happen with the actual implementation on a case-by-case basis at the points of contact with students and scholars," Julian said.
Deborah Pearlstein, a professor of law at Yeshiva University's Cardozo School of Law who focuses on constitutional and international law, observed that the court had created a whole new standard in distinguishing between individuals who have a "bona fide relationship" with a U.S. person or entity and those who don't. It’s “not as if that has some existing legal meaning. The people who work for the government in the front lines are going to have to make a determination on a case-by-case basis what that means," she said.
"In the near term, this is not a good thing for refugees with no previous connections to the United States seeking admission," Pearlstein said. From a higher education perspective, Pearlstein said the opinion is not a total win "for at least two reasons. No. 1, this is just a stay -- a partial stay at that. We have yet to see how this is all going to play out. Is the administration going to issue some more permanent order; if it does, will it be upheld by the court? There’s an enormous amount of uncertainty here still that’s related to the second point, which is it’s hard to assess the sort of chilling effect of all of this uncertainty on students and families who might be sending a student to the United States to study."
"If I were a family contemplating sending a kid here to school now, I’d worry a lot more about what’s likely to happen in the next two, four years, and I’d be a lot less certain about what kind of environment they’ll be coming into," she said.
"If you are a person thinking about applying, is this going to make you feel confident -- 'oh yeah, if I’m admitted, everything will be cool?' No, it will have a chilling effect," said Wim Wiewel, the president of Portland State University. He noted that the Supreme Court agreeing to take up the case in October means there will be many more months of uncertainty until the court issues a final decision on the ban's merits.
"In March [when the second travel ban was issued] nothing was allowed. Now all of a sudden [after the injunctions], everything’s OK. Now it’s the end of June and it’s OK for some people but not for everybody. In October the Supreme court is going to hear it, so what’s going to be true in October?" he asked. "Any person who looks at it would say we’re not very welcome. And second, it’s unclear what will or will not be OK, so why will I gamble with my future, especially if there are alternatives? If you can go to the United Kingdom or Australia or Canada and you have a similar kind of opportunity or funding, why take a chance?"
NAFSA, the international educators' association, also noted in a statement that the court's order "continues to inject uncertainty into the scope of the travel ban and has added a new distinction between those who have ties to the United States and those who have none."
“International educators are relieved to be able to tell our international students and scholars that they should not be afraid to come to our campuses to study, work and exchange ideas. We are pleased the court acknowledged that students and scholars and others with connections to the United States could not be barred from our country simply because of their nationality or religion, at least while the underlying litigation continues,” said Esther D. Brimmer, NAFSA's executive director and CEO.
“Unfortunately, individuals from the affected countries with no ties to the United States will be subject to the ban on the grounds that a lack of connection to the United States somehow provides evidence of a national security threat,” Brimmer said. “If that is the case, then we should be making every effort to create connections and ties through robust international exchange and travel, and we call on the administration to make clear in its guidance that prospective students and scholars should not be afraid to seek admission to the United States regardless of their current ties.”
A ‘Solomonic’ Opinion
Three conservative justices on the court partially dissented in the case, saying that while they agreed with the decision to stay the preliminary injunctions, they would have stayed them in full, not in part. Justice Clarence Thomas, joined by Justices Samuel Alito and Neil Gorsuch, wrote that he fears "that the court’s remedy will prove unworkable. 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's dissent continued, "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 … And litigation of the factual and legal issues that are likely to arise will presumably be directed to the two district courts whose initial orders in these cases this court has now -- unanimously -- found sufficiently questionable to be stayed as to the vast majority of the people potentially affected."
Trump, in a statement today, described the Supreme Court's opinion as “a clear victory for our national security. It allows the travel suspension for the six terror-prone countries and the refugee suspension to become largely effective.”
"My No. 1 responsibility as commander in chief is to keep the American people safe," the president said. "Today's ruling allows me to use an important tool for protecting our nation's homeland."
Both Pearlstein and Yale-Loehr independently described the opinion as "Solomonic," however, in its split nature. "They basically split the baby in half by allowing part of the travel ban to go forward and yet allowing people who are directly affected by it because of their relationship to the United States to still be able to theoretically enter the United States," Yale-Loehr said.