Litigating the Supreme Court’s Entry Ban Opinion: What’s the Required Connection?

All of the briefs are now in on the government’s motion to the Supreme Court for clarification of its order in Trump v. Hawaii, No. 16-1540:

The Government’s Motion.

Hawaii’s Response.

The Government’s Reply.

There are five amicus briefs opposing the government’s motion; SCOTUSblog is collecting them here.

Here is my earlier post on what’s at stake.

The briefs are extremely well-done, especially in light of the time constraints.  They tee up the relevant issues very effectively.  For now, then, I’ll only address two quick things about the government’s reply brief:

First, the opening sentence is a bit of an eye-opener.  “This Court’s June 26, 2017, stay ruling,” writes the Acting Solicitor General, “was intended to allow Executive Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017) (Order), to take effect, except for those aliens with a substantial connection to a U.S. person or entity.”

“Intended” by whom?  The Court itself, in its per curiam opinion, did not say that the challenged provisions of the Executive Order were generally “to take effect”–to the contrary, the Court largely sustained the two preliminary injunctions prohibiting implementation of those provisions.

More importantly, the Court’s partial stay of those injunctions does not (as the Solicitor General states) cover all aliens lacking a “substantial” connection to a U.S. person or entity–the Court stayed the injunctions only with respect to “foreign nationals abroad who have no connection to the United States at all.”  This wasn’t an inadvertent descriptor; the Court used that and equivalent formulations repeatedly:  “a foreign national who lacks any connection to this country”; “when there is no tie between the foreign national and the United States”; “foreign nationals who do not . . . have some connection to this country”; “foreign nationals unconnected to the United States.”  To be sure, the Court also explained that the connection must be “bona fide” rather than pretextual:  the modified injunctions do not protect “someone who enters into a relationship simply to avoid §2(c) [of the Order].”  The Court did not say, however, that the connection must be “substantial.”  That adjective is a limitation of the SG’s own creation, one not found in the Court’s opinion.  (For what it’s worth, Hawaii’s brief does a good job of explaining how the connections in question are substantial, especially between refugees and resettlement agencies.  Such a showing is not, however, what the Court’s modified injunction requires.)

Second, as I explained in Point 3 of my post earlier this week, the government has not offered any reason to believe that entering refugees–all of whom would have been thoroughly screened for security concerns for many months (see pp.4-7 of the IRAP/HIAS amicus brief, describing the process in detail), and all of whom would be robustly supported by a designated resettlement agency (such as the U.S. Conference of Catholic Bishops and its local affiliates, which, as Hawaii notes, “receive the largest share of federal resettlement funding”)–present any risk at all of committing terrorist acts in the United States.  Somewhat surprisingly, in its briefs to the Supreme Court the government does not even attempt to offer any basis for the alleged national-security concern that purportedly justifies the challenged entry restrictions for such refugees. Indeed, as the amicus brief of 43 former national security, foreign policy, intelligence, and other public officials explains:

[T]he Government’s position entirely misunderstands the realities of— and the national security protections provided by— the existing process.  Refugees already receive the most thorough vetting of any travelers to the United States, and that vetting process is constantly reviewed and tightened as the situations demand. Refugee candidates are vetted recurrently throughout the resettlement process, as “pending applications continue to be checked against terrorist databases, to ensure new, relevant terrorism information has not come to light.”  By the time refugees referred by the United Nations High Commissioner for Refugees (“UNHCR”) are approved for resettlement in the United States, they have been reviewed not only by UNHCR but also by the National Counterterrorism Center, the Federal Bureau of Investigation, the Department of Homeland Security, the Department of Defense, the Department of State and the U.S. intelligence community. . . .

As a result of all of these protections, from 1975 to the end of 2015, over three million refugees have been admitted to the United States.  Despite the vast number of admitted refugees, no refugee has killed an American in a terrorist attack in the United States since the modern refugee vetting system began in 1980.  More than 18,000 Syrian refugees were resettled in the United States between October 1, 2011 and December 31, 2016, and we are unaware of a single one who has been detained due to a connection with terror.

Thus, as those amici write, “[w]hatever the Government’s rationale may be for seeking to exclude refugees who have secured formal assurances from a U.S.-based resettlement agency, that rationale cannot plausibly rest on national security imperatives.”

Image credit: Getty-Boarding1Now 

Filed under:
About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).