Landmark decisions of the Supreme Court (SC) of the United States on global issues such as terrorism will undoubtedly have a significant impact on how other countries deal with such issues.
A week after his inauguration on January 20, 2017, the incumbent President of the United States signed Executive Order No. 13769 (EO#1) entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (EO #1).
EO#1 seeks to ban entry to the United States of foreign nationals from seven nations — namely, Iraq, Iran, Yemen, Syria, Libya, Somalia and Sudan — because they are designated as “state sponsor of terrorism” or “terrorists’ safe havens” or they are countries plagued with armed conflict between the government and local groups infiltrated by known terrorist international organizations.
The purpose of the 90-day ban is to give the U.S. government time to examine and review the procedures and rules followed by the six countries in providing information for visa applicants, thereby ensuring that no terrorist or potential terrorist can come to the U.S. EO#1 also suspended for 120 days the U.S. program on admission of refugees as well as reducing the number of those who could be admitted.
Due to its sudden implementation, EO#1 has caused commotion in several international airports all over the U.S. One of the provisions of EO#1 which causes so much confusion was its application even to green card holders and travelers with valid visas. The order was so lacking in clarity that it confuses unsuspecting foreign nationals from the seven countries and other countries all over the world.
No wonder its constitutionality was challenged before federal district courts, and the executive branch was ordered to refrain from enforcing it. Instead of pursuing its legal fight, the government issued on March 6, 2017 a replacement order, Executive Order #13780 (EO #2).
EO #2 excluded the controversial provisions pertaining to green card holders and took out Iraq from the list of “the banned countries.” Again, EO#2 was brought to court, and it suffered the same fate. The U.S. government was ordered anew to refrain from enforcing the order.
The government elevated the case to the Supreme Court, claiming, among others, that the President of the U.S., under Section II of the Constitution and Section 212(f) of the Immigration and Nationality Act (INA), has the power to “suspend the entry of all aliens or any class of aliens” whenever he determines that their entry would be “detrimental to the interests of the United States.”
The respondents assert that EO#2, among others, violates the establishment clause of the First Amendment of the Constitution which states that «Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof…”
On June 26, 2017, the U.S. Supreme Court issued its preliminary order [Trump v IRAP, page 8, 582 U.S. (2017); Nos. 16- 1436 (16A1190) and 16-1540 (16A1191)] that allows in a limited sense Trump’s travel ban to be enforced on nationals of the six countries with the following specific instructions:
(1) Not all foreign nationals of the six countries are banned; only those who have “no connections to the United States at all.”; (2) foreign nationals from the six countries with bona fide relationships, such as familial relationships, employment contracts with U.S. employers, student visas will be allowed entry if such exclusion will cause them undue hardship; (3) the U.S. government has to (a) accomplish the 90-day review needed to accomplish the purpose of EO#2, and, more importantly, for the Department of Homeland Security (b) to define the groups that should be allowed entry despite being nationals of the six countries based on their bona fide relationships with their family, employer, schools and universities in the U.S.
The Supreme Court will hear the case on the merits in the fall.