Analysis of the Supreme Court's Partial Reinstatement of the Travel Ban

President Trump’s Travel Ban- an executive order barring entry of immigrants from seven target countries- has taken a number of turns through the court system since its implementation in February and re-introduction in March. For more information about the travel ban and its history through the judicial system, you can check out our earlier blog here.

Last month, the fourth circuit upheld the lower court’s decision to suspend the ban, ruling that it violated the Constitution by discriminating against particular immigrants without adequate justification for such extreme security measures. In a move that many saw as inevitable, yesterday (Monday, 6/27) the Supreme Court granted cert of the case and agreed to review the fourth circuit’s decision during its upcoming term. This means a final decision regarding the executive branch and its ability to implement a ban of this nature will not be decided until the case has been heard in front of the nine justices. An opinion should be written and released in late spring or early summer of 2018.

As many who follow the Supreme Court know, the court is currently balanced between four conservative justices, four liberal justices, and Justice Kennedy who often serves as a tiebreaker on hostile political issues like this one. Assuming that the Court remains balanced throughout next term, the Court is likely to split down the middle, leaving the deciding vote on the ban to Justice Kennedy. Justice Kennedy’s opinion history is split on this issue. He has often leaned left on issues involving discrimination and civil rights, but his past opinions also indicate that he is cautious to use the judicial branch to limit the power of the executive. In short, it’s impossible to say definitely at this point how the Supreme Court will come down on this issue.

Perhaps the most striking immediate effect of the Court granting cert of this case is that it partially reinstated parts of the original travel ban. Until a final decision is made next year, the Court is allowing a very narrow version of the ban to go into effect for foreign nationals who lack any "bona fide relationship with any person or entity in the United States." Although this partial reinstatement is undeniably disheartening, it’s also important to note that its effect is significantly limited and difficult to implement due to the lack of guidance from the judicial branch.

There is a significant lack of clarity as to what constitutes a “bona fide relationship,” and the inherently broad wording used in the decision is inarguably vague. The result of such ambiguous phrasing is that almost any immigrant could have grounds to argue the existence of a “bona fide relationship with any person or entity.”

Could the “person” mentioned by the Court be a cousin? A friend? An employer? Could the “entity” be an organization? A sponsoring non-profit? Or even a hotel booking? Questions like these leave inevitable gaps in the Court’s ruling that will almost certainly result in another round of litigation if someone from the seven countries targeted by the ban is denied entry to the United States.

Until a final decision has been made, it is very important for immigrants from the seven countries targeted by the ban to stay vigilant and up-to-date on all new developments regarding this issue. Because there is so much unknown about how the partial ban will be implemented by DHS, it is best not to travel unless absolutely necessary and understand the inherent risks of doing so. For more information about the ban or immigration generally, please contact an attorney at Stilwell & Slatton Immigration by calling 202-333-2100 or emailing us as