Supreme Court Hands Trump Administration Travel Freeze Victory
Legislative Update By: RJ Hauman
Last week, the Supreme Court blocked part of an injunction that would have admitted certain refugees into the country despite President Trump’s travel freeze temporarily prohibiting their entry. (Law360, Sept. 12, 2017) It is estimated that the ruling impacts some 24,000 refugees from six countries that are terror hotbeds who have to wait until October when the high court rules on the merits of the travel freeze. (Id.)
The issue concerning the scope of the revised travel freeze has been ricocheting through the courts since the Supreme Court issued an order on June 26 finding that people with “bona fide relationships” in the U.S. were exempt from the freeze. (New York Times, Sept. 12, 2017) In its interpretation of that ruling, the administration said that only some relatives of American residents—parents, children, spouses, siblings, parents-in-law, sons- and daughters-in-law, and people engaged to be married—could enter. (Id.) The administration also said that relationships between refugees and resettlement agencies were too attenuated to qualify for an exception to the ban because the government had made the arrangements. (Id.) However, in July, activist Judge Derrick Watson of the U.S. District Court in Hawaii disagreed with the administration’s interpretation and issued a preliminary injunction, holding that the government could not bar other relatives, including grandparents, grandchildren, aunts, uncles, nephews, nieces, and cousins. (Id.) Judge Watson also ruled in favor of those refugees whom resettlement agencies were prepared to assist. (Id.) A unanimous three-judge panel of the United States Court of Appeals for the Ninth Circuit, sitting in Seattle, predictably agreed on both points. (Id.) At the Supreme Court last week, the government successfully challenged only the part of the appeals court ruling concerning refugees, arguing that there is no direct connection between refugees and resettlement agencies. (Id.)
As the administration awaits its October 10 hearing on the lawfulness of the remainder of the travel freeze, it also faces a looming decision on how many refugees to admit in Fiscal Year 2018. Reports are circulating that the administration is planning to cap refugee admissions at 50,000, down from the 110,000 cap set by President Obama before he left office. (Fox News, Sept. 13, 2017) As a reminder, the president has broad statutory authority under the INA to determine how many refugees to admit in a given fiscal year, provided that the determination is made before the fiscal year begins. (INA Sec. 207; 8 U.S.C. 1157) While the prospect of capping refugee admissions at 50,000 has alarmed the president’s critics from a policy standpoint, it is worth noting that the number is in line with Jordan Commission recommendations and historical norms. (See FAIR Refugee Issue Brief)