The Supreme Court’s Murky Standard for Applying the Trump Travel Moratorium

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In early July, a U.S. District Court judge in Hawaii held that the federal government must ease new immigration controls it implemented in response to the Supreme Court’s recent Trump “travel ban” decision. That decision allows the implementation of parts of the temporary moratorium on travel from certain countries with ties to terrorism. It also highlights why the Supreme Court must keep to its constitutional role of interpreting the law, in order to avoid creating confusing new legal standards.

In, a preliminary ruling on Trump v. International Refugee Assistance Project, the Supreme Court held that aliens with a “credible claim” to a “bona fide relationship” with “a person or entity” in the United States can not be denied admission to the United States. However, the bona fide relationship requirement is utter nonsense. The Immigration and Nationality Act of 1965 (INA) governs immigration to the United States. Nowhere in any of the thousands of pages that make up the INA does it say that anyone with a bona fide relationship to a person or entity in the United States must be let into America.

With the exception of U.S. citizens, no one seeking to enter the U.S. has an unfettered right to be admitted. Per the terms of the INA, all those seeking entry must prove to the satisfaction of U.S. Customs and Border Protection (CBP) that they are admissible to the United States. Documents provided by U.S. Citizenship and Immigration Services (USCIS) and the Department of State (DOS) are evidence of admissibility. They are not a guarantee of anything. Even green card holders may be denied entry to the U.S. if they have violated the terms of their status. So, the Supreme Court seems to have pulled out of thin air an entirely new standard for admission to the United States.

In so doing, it has placed CBP in the unenviable position of risking contempt of court just for doing its job well. It has also transferred the decisions regarding who should be allowed into the U.S. from the hands of the roughly 60,000 highly trained immigration specialists at the Department of Homeland Security and DOS, into the hands of a few unelected federal judges with negligible immigration experience.

A full hearing on this case should be held in late October. Until then, the Supreme Court may have been trying to “split the baby,” by formulating an extra-statutory standard for applying the interim version of the moratorium. However, the Court made a grievous error. Justice Thomas acknowledged this, calling the Court’s formulation an “unworkable remedy” that invites additional litigation. And the decision has created a disconcerting situation in which the national security interests of Americans are being subordinated to extremely vague legal entitlements allegedly held by foreigners with insignificant, if any, ties to the United States.

When the Supreme Court finally decides this case on the merits, it should adhere to the 150 years of clear precedent holding that the courts are ill suited to controlling our borders. Otherwise, the United States will wind up a borderless nation without the tools to defend itself against foreign intelligence agents, terrorism, and transnational crime.

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About Author

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Matthew J. O’Brien joined the Federation for American Immigration Reform (FAIR) in 2016. Matt is responsible for managing FAIR’s research activities. He also writes content for FAIR’s website and publications. Over the past twenty years he has held a wide variety of positions focusing on immigration issues, both in government and in the private sector. Immediately prior to joining FAIR Matt served as the Chief of the National Security Division (NSD) within the Fraud Detection and National Security Directorate (FDNS) at U.S. Citizenship and Immigration Services (USCIS), where he was responsible for formulating and implementing procedures to protect the legal immigration system from terrorists, foreign intelligence operatives, and other national security threats.He has also held positions as the Chief of the FDNS Policy and Program Development Unit, as the Chief of the FDNS EB-5 Division, as Assistant Chief Counsel with U.S. Immigration & Customs Enforcement, as a Senior Advisor to the Citizenship and Immigration Services Ombudsman, and as a District Adjudications Officer with the legacy Immigration & Naturalization Service. In addition, Matt has extensive experience as a private bar attorney. He holds a Bachelor of Arts in French from the Johns Hopkins University and a Juris Doctor from the University of Maine School of Law.

8 Comments

  1. avatar

    The supreme court is the third branch of the federal crime syndicate. They do not give true interpretations of our constitutional law. They do not stay within the delegated boundaries by merely interpreting law, but they’ve created new laws and changed others. Which is illegal, but our rogue legislative and executive branches let them get away with it. And that can only happen when State Governors, city mayors, along with the general public, are Constitutionally illiterate and civically indifferent.

  2. avatar

    Send All the ISIS Tainted Refugees to Germany

    Merkel seems to love them. The trade deficit with Germany requires TARIFF now!

    Negotiate less tariff and Germany gets all the ISIS tainted refugees. Go Trump!!!

    • avatar

      SWE for supposedly an educated American to be “above average” and with an engineering degree … you show the intelect of a tenth world country citizen…….no guts, no vision etc.

      Merkel and the older Germans were victim of the Nazis and know in their own skin what is it misery….something you are retarded from. This is a fact, just form your reply.

      Based on WWII they had compassion and accepted them, something your soul and heart are incapable of understanding……SOOOO they now realized they made a mistake….and they are trying to fix it…..

      Have you made mistakes in your life…..ever…I am sure…but compared to the rest of the World you never had to miss food and a roof…..
      you are spoiled and dumb when it comes to matters like these because you do not qualify as a scholar or have the wits for it…..

      Last, after all the lies and putting everybody against everybody and insulting everybody go Trump?…… I hope your descendants are real human beings….

  3. avatar

    There is nothing in the text of the constitution, on which our legal system is supposedly based and which the courts are to enforce, that suggests or even remotely implies that a person who is a citizen of another country has any right to enter, no matter their “relationship” to any person or entity here. Just taking the language “bona fide relationship”, what is to prevent some future or present court from saying that a second cousin has a bona fide relationship to someone here and can enter without limit. Where is the end? This is more than a slippery slope, it’s a walk off a cliff.

    I was reading an article from a left wing site a few days ago that claimed that Obama deported more illegals than Trump. This is like 1984. Which lie by big brother media and the left are we to believe today. How is it then that it’s Trump that’s the bad guy if Obama deported more? During Obama’s presidency we heard constantly from the media and Democrats, including Chuck Schumer, that Obama was the “deporter-in-chief”, so tough on illegals that he had deported more than the last four presidents put together.

    The fact is that it was all a lie based on the fact that for the first time ever, the Obama administration “counted as a deportation”, in his own words, those turned around at the border, instead of the traditional counting of those removed from the interior of the country. Those interior removals fell sharply. But it’s just hard to reconcile how Obama was supposedly so tough on illegals yet somehow Trump is the bad guy because he is actually doing what Obama supporters bragged that Obama did. How many ways do they get to have it and are we just supposed to forget all that they said just a year ago? Which was Obama? Deporter-in-chief or protector of the “undocumented”? What’s tomorrow’s angle?

    • avatar

      Are you in love w/Obama? do you have a crush for him like Hannity? Just let it go!!.. now you have your loved ones…..Mitchel, Ryan, Pemce and Trump…….

      • avatar

        No, I don’t share your schoolgirl crush on Obama. And I have no use for Paul Ryan who is totally willing to flood the US with ever more unskilled immigrants. My main point with Obama is how the media lied to portray him as tough on immigration when he was anything but. That the media has a double standard is obvious. When the grand jury in Ferguson Missouri failed to indict Officer Wilson for defending himself against Michael Brown, a decision later confirmed by the Justice Dept, it was Obama who said that the “anger” of those who rioted afterward was “understandable”. Funny how he got a pass for justifying riots.

        • avatar

          Leland I did not say I share you crush….YOU DO HAVE A CRUSH ON OBAMA>>…..YOU ARE IN LOVE with THE MAN!!!

    • avatar

      Leland we have serious problems than just deportation like the fake news, the mess that you voted for…for instance…… yet you are in denial of you actions and your vote destroying this land..n going backwards 40 years plus with this administration,……