While the recent decision to uphold President Donald Trump’s appeal of two circuit court rulings that a moratorium on travel was unconstitutional is an overdue legal victory for the administration, the ruling leaves more issues to be hashed out. The legal debate over what this temporary ban will ultimately look like has only begun.
As has been reported, the decision deemed the proposed policy of extreme vetting for hopeful American entrants from six majority Islamic nations as constitutional, with a caveat. Migrants from these nations who have “bona fide” ties to the United States, whether that means family ties, employment visas, or other yet-to-be-defined connections will still be allowed in.
This caveat means that decisions regarding who should and should not be admitted during this extreme vetting period hinge, essentially, on the legal definition of “bona fide.” One certainty is that this definition will be tested, early and often.
This contingency within the Supreme Court’s overarching ruling that President Trump does have the power to pause the migration of people from select nations is meant to account for the exceptions to the intended purpose of the temporary ban. By adding this language, the Supreme Court provided an avenue through which previously vetted people hailing from these six nations could continue their travel.
But, like with any law, challenges will be made by those who are not true to this exception. Justice Clarence Thomas, in a dissent formed along with Justices Gorsuch and Alito, warned of this likelihood. More specifically, it will likely be argued whether or not any given ‘tie’ to the United States, however tangential or thin, qualifies as a “bona fide” reason to be permitted entry.
“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 wrote.
Thomas, per usual, is spot-on with his assessment foreseeing the inevitability of countless individual cases being brought, with each hopeful immigrant seeing their set of personal circumstances as somehow different than the prior, rejected case.
Further, some have pointed out that this guideline for what constitutes qualification for immigration into the United States is the non-merit based system Trump vowed to move America away from, instead relying upon a more merit-based system for choosing who will be allowed to move to America and eventually naturalize. Regardless of how you feel about current Canadian policy regarding immigration, for decades our northern neighbor has chosen immigrants based on their skills and the likelihood that they will thrive upon becoming a Canadian resident and eventually, citizen.
Hopefully, this ruling by the Supreme Court is not a sign of immigration policy to come, and only what it appears to be: a temporary measure to ensure families are not broken up because of this newly instated moratorium on immigration. This would be the most likely conclusion, as avoiding heart-wrenching stories about families separated as a direct result of Donald Trump’s policy is imperative, both for Donald Trump and the Republican party, not to mention the image of the newly right-leaning Supreme Court.
So, it is blatantly clear that legal battles, most of which will be heard by the same 4th and 9th circuit courts, notoriously liberal and proven opponents of the now officially legal moratorium on immigration from the six designated countries, are to come. Most challenges to the “bona fide” language will come from individuals hoping to migrate to the country without ties deemed “bona fide” by the courts, or those representing these hopefuls. But some challenges are likely to come from the courts themselves, thorns in the side of President Trump and his cabinet that are unlikely to remove themselves soon.
Further logistical issues remain to be resolved as well.
Questions regarding the specifics of the vetting process have yet to be answered. The Middle East region is notorious for being such a hodge-podge of terrorists, non-violent citizens who still hold radical views, and citizens who pose no threat to America and may be viable candidates for assimilation. Whether it is a soldier kicking down doors, a politician looking to make alliances, or now a judge determining who is fit to enter America, distinguishing between these groups with consistent accuracy has proven nearly impossible. Aside from family ties already in place, what practice is going to be implemented as part of proposed “extreme vetting” that will be the cure for the opacity of the Middle Eastern population?
Even if and when those procedures are implemented and eventually proven to work, how long will the ban be left in place? Terrorism is not going to subside anytime soon, likely never, and these six nations will continue to be the hottest of beds for producing radicals. Presumably, the temporary ban will eventually end, but the practices of extreme vetting will continue indefinitely. At least, that is the only logical conclusion based on what we know about the region and its vulnerability to terrorist origination.
Time will tell how the courts will rule in individual cases, but expect some form of sliding scale. When it comes to the 4th and 9th circuit courts, they have proven that they are not above ruling by emotion or partisan politics.
Rest assured, however, that vitriol will heighten the longer that the moratorium is left in place, and it may not come only from ANTIFA and the vocal left. It may come from the circuit courts themselves, both in rhetoric and rulings.