The government's interest in enforcing (the ban), and the executive's authority to do so, are undoubtedly at their peak when there is no tie between the foreign national and the United States.What constitutes a 'tie' between the traveler and the US?
The facts of these cases illustrate the sort of relationship that qualifies. For individuals, a close familial relationship is required. A foreign national who wishes to enter the Unites States to live with or visit a family member, like Doe's wife or Dr. Elshikh's mother-in-law clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO-2. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid (the ban). For example, a nonprofit groups devoted to immigrant issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.The intent of the 'close relationship' part was to help eliminate much of the churn that happened when the original ban was implemented, which included keeping people in America as well as keeping people out of America.
In a statement issued by the White House, we were advised that
Today's unanimous Supreme Court decision is a clear victory for our national security. It allows the travel suspension for the six terror-prone countries and the refugee suspension to become largely effective.
As president, I cannot allow people into our country who want to do us harm. I want people who can love the United States and all of its citizens, and who will be hardworking and productive.
My number one responsibility as Commander in Chief is to keep the American people safe. Today's ruling allows me to use an important tool for protecting our Nation's homeland. I am also particularly gratified that the Supreme Court's decision was 9-0.The Department of Homeland Security promised to think outside the box this time, and to consult with other agencies, including the Departments of Justice and State, to come up with a plan.
The implementation of the Executive Order will be done professional, with clear and sufficient public notice, particularly to potentially affected travelers, and in coordination with partners in the travel industry.Still, concerns abound. What constitutes a 'close familial relationship' for example; would a cousin count? A Joseph Greenwald and Laake civil rights attorney, Jay Holland, notes
There is absolutely a gray area. The issue of who has a bona fide relationship or familial relationship certainly appears to be an open and confusing question.The head of corporate communications for the International Air Transport Association,Perry Flint noted in the same article linked above,
It is absolutely imperative that airlines receive clear and concise information, as well as sufficient time, to enable them to comply with those portions of the executive order for which the injunction was stayed.Justice Clarence Thomas wrote a dissenting opinion, which Justices Alito and Gorsuch joined, largely on the point of trying to define rules that meet the Court's requirement of a relationship.
Moreover, I fear that the Court's remedy will prove unworkable. 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... The compromise will also invite a flood of litigation until this case is finally resolved on the merits, as parties and courts struggle to determine exactly what constitutes a "bona fide relationship," who precisely has a "credible claim" to that relationship, and whether the claimed relationship was formed "simply to avoid (section) 2C of Executive Order No. 13780...It would be hard to imagine that the implementation could be worse this time around, but this is the government, after all (and no, that's not a comment on this particular administration). At least the people who have to make this work are talking to experts for assistance.
Now that a decision has been made, we should all hope for the best - and perhaps more importantly, hope that the efforts to "figure out what the hell is going on" which started earlier this month, are completed timely.