On Monday, the Supreme Court announced that it will consider whether President Trump's travel ban violated federal law and partially granted the Trump administration's request to temporarily stay lower-court rulings against the ban.
The executive order sought to ban the issuance of new visas for 90 days to individuals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, and to suspend refugee entry from all countries for 120 days. It was Trump's second immigration-related executive order since taking office.
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Before the second order took effect, federal judges in Hawaii and Maryland blocked the order, saying that it represented unconstitutional religious discrimination. The Trump administration appealed both rulings, but both the 4th U.S. Circuit Court of Appeals and the 9th U.S. Circuit Court of Appeals upheld the injunctions.
The Supreme Court said on Monday that it would review both lower court rulings and would hear arguments in October. Further, in an unsigned opinion, the justices partially granted the administration's request for a stay on injunctions, essentially reinstating parts of the travel order.
Status of international students and scholars
The justices said individuals who have no ties to the United States and are applying for a first-time visa can continue to be denied access, but those with ties or relationships in the United States would still be allowed to enter the country.
They wrote, "In practical terms, this means that" the executive order "may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States."
International students and scholars travelling to American colleges and universities appear to be included in the group of individuals who have a "bona fide relationship." The justices listed examples of individuals who would be protected, which specifically included students admitted to the University of Hawaii. Other examples of protected individuals include "a worker who accepted an offer of employment from an American company" and "a lecturer invited to address an American audience."
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The American Association of State Colleges and Universities said the announcement was "welcome news for colleges and universities," adding that "The court specifically recognizes the status of admitted students and employees as constituting such a bona fide relationship. We expect that the administration will comply fully with the court's ruling in its visa decisions and hope that citizens of the countries in question will continue to participate in, and contribute to, American higher education as appropriate."
Enforcement may lead to confusion
However, some international education experts and immigration lawyers told Inside Higher Ed that they have concerns about how the new rules will be enforced.
"This order is going to create a lot of confusion," says Stephen Yale-Loehr, professor of immigration law practice at Cornell University. He acknowledges that students and lecturers were specifically included as examples of individuals with a "bona fide relationship," but argues that "much will be left to the discretion of consular officers at U.S. embassies overseas and to Customs and Border Protection officials at ports of entry."
Mark Hallet, senior director for international student and scholar services at Colorado State University, also expressed concerns about how the announcement would be enforced. "The language is good; it comes down to the implementation," he says.
The back-and-forth of the travel order and injunctions over the last few months could create a "chilling effect" for international students, says Wim Wiewel, president of Portland State University.
"In March [when Trump issued his second travel order] nothing was allowed. Now all of a sudden [after the injunctions], everything’s OK. Now it's the end of June and it’s OK for some people but not for everybody. In October the Supreme court is going to hear it, so what's going to be true in October?" he asks.
"Any person who looks at it would say we’re not very welcome. And second, it’s unclear what will or will not be OK, so why will I gamble with my future, especially if there are alternatives? If you can go to the United Kingdom or Australia or Canada and you have a similar kind of opportunity or funding, why take a chance?" Wiewel adds.
Justice Clarence Thomas, joined by Justices Samuel Alito Jr., and Neil Gorsuch, raised similar concerns in a dissent, in which they wrote that they would have fully revived the travel ban while the court considers the case. Justice Thomas wrote, "I fear that the court's remedy will prove unworkable," adding, "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."
Justices suggest case could be moot before it is argued in court
The Supreme Court also addressed points raised in legal briefs filed with the court earlier this month that noted part of the 9th Circuit appeals court ruling could make the case moot before the justices hear oral arguments.
While the 9th Circuit upheld the portion of the lower court's ruling that blocked the executive order from taking effect, it overturned a part of the lower court ruling that barred the administration from conducting internal reviews of its vetting procedures while the case was underway. The executive order had suspended travel for individuals from the six countries for 90 days to give the Trump administration time to conduct the internal review.
According to the Times, the justices suggested that if the Trump administration completes its internal review over the summer, that case could be moot before it is argued in October (Liptak, New York Times, 6/26; Redden, Inside Higher Ed, 6/27).
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