June 2017 | IELR Blog

On June 29th, 2017, after a U.S. Supreme Court ruling partially lifted the stay on the executive action, the Trump administration enacted a revised, limited version of its controversial travel ban into effect. The Supreme Court ruling places limitations on the ban, forcing the Trump administration to make revisions to comport with the decision, and opening the door to possible further litigation regarding whether or not the revisions actually satisfy those limitations.

The per curiam order in Donald Trump v. the International Refugee Assistance Project and Donald Trump v. Hawaii both partially stays the preliminary injunction placed on the Executive Order by a district court judge in Hawaii (and upheld by the 9th Circuit Court of Appeals) and grants a writ of certiorari to review the case and make a final ruling on the order’s ultimate legality. The qualified stay of the injunction is careful to explain that it is not a decision on the ultimate legality of the executive order. The order explains that an injunction is intended to provide “interim relief” to the affected parties to the suits; in this case, a plaintiff going by John Doe who is a permanent resident in the U.S. and whose Iranian wife is seeking entry to the U.S., Dr. Ismail Elshikh, an American citizen whose Syrian mother-in-law is seeking entry into this country, and the state of Hawaii, whose standing is derived in part from the fact that students who had been accepted to the University of Hawaii would be adversely impacted by the travel ban.

The order thus seeks to provide interim injunctive relief to the affected parties, but limits this relief to those “foreign nationals with a credible claim of a bona fide relationship with a person or entity in the United States”. The Court reasons that the injunction previously issued and affirmed, which bar enforcement of the Executive Order “against foreign nationals abroad who have no connection to the United States at all” provided relief to harm not imparted on the plaintiffs, and are thus too broad.

In response to this ruling, the State Department has taken to defining what constitutes a “bona fide relationship” to the U.S. The relatives deemed sufficiently close family members to exempt people from the travel ban, whether as visitors or refugees, are: a parent, spouse, child, an adult son or daughter, son-in-law, daughter-in-law or sibling, as well as their stepfamily counterparts. The administration’s new rules do not allow grandparents, grandchildren, uncles, aunts, cousins and fiances.

Lawyers for the state of Hawaii have once again petitioned the court to injoin the government from enforcing the ban, reasoning that the government has taken far too narrow a definition of what constitutes a “bona fide relationship”. “The Government does not have discretion to ignore the Court’s injunction as it sees fit,” the lawyers wrote. “The State of Hawaii is entitled to the enforcement of the injunction that it has successfully defended, in large part, up to the Supreme Court — one that protects the State’s residents and their loved ones from an illegal and unconstitutional Executive Order.”

The Supreme Court order can be found here, in its entirety: https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf

A Washington Post article explaining the government’s revisions to the ban in response to the Court order is linked to here: https://www.washingtonpost.com/world/national-security/travel-ban-to-take-effect-as-state-department-defines-close-family/2017/06/29/03eb8a8e-eba6-4749-9fa2-79117be89884_story.html

On June 19, 2017, the Supreme Court issued a landmark decision in Ziglar v. Abbasi likely to have ramification in both domestic law enforcement and international affairs. In a 4-2 decision, with two justices recusing themselves and another having not yet joined the court at the time the case was heard, the Court ruled that there was no personal civil liability or cause of action against top officials in the Bush administration for their actions immediately following the September 11, 2001 terror attacks.

In writing for the majority, Associate Justice Anthony Kennedy acknowledged the cruel treatment inflicted on the plaintiffs, a group of mostly Muslim immigrants who had been detained, beaten and unreasonably searched at the Metropolitan Detention Center in Brooklyn immediately following the attacks. Justice Kennedy stated that, “if the facts alleged in the complaint are true, then what happened to the respondents in the days following September 11 was tragic.” However, Kennedy wrote that in times of a national security crisis, a civil action against policy-makers is not a proper way to address improper conduct.

The case runs counter to longstanding Supreme Court precedent deriving from the 1971 case of Bivens v. Six Unknown Named Agents, in which the Court held that a civil right of action created by Congress against state and local officials was implicitly guaranteed by the Constitution against federal officials. While the Court has since severely restricted this right of action in the years since Bivens, this decision represents the most direct break from the precedent set in that case. In those cases, the Court held that Bivens did not apply to so-called “new contexts” — in this case, it ruled that the circumstances behind the mistreatment (a terror attack) constituted a “new context”, even though the actions taken by law enforcement (improper detention, unreasonable searches, assault) were context previously covered by Bivens.

Justice Stephen Breyer, in a dissent read from the bench, starkly disagreed with the majority’s logic, writing that “history tells us of far too many instances where the executive or legislative branch took actions during a time of war that, on later examination, turned out to be unnecessarily and unreasonably to have deprived American citizens of basic constitutional rights.” Breyer argued that civil actions — referred to informally as Bivens actions or 1983 actions (after 42 U.S. Code § 1983, where the statute is located) — were an appropriate remedy for such malfeasance.

In addition to the constitutional questions raised, the case could have ramifications for the U.S. in international affairs. Countries who had previously been loathe to allow their citizens to file civil actions against U.S. officials in their home countries may now reconsider, as there is no longer an avenue for those cases to be filed in the U.S. This could expose U.S. officials to civil lawsuits in numerous foreign jurisdictions, which could obviously be a source of international conflict.

After Supreme Court Ruling, Limited Travel Ban Goes Into Effect

Landmark Supreme Court Case Rules Bush Officials Cannot Be Sued for Post 9/11 Actions

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