In a routine, but potentially still quite ominous order, Justice Anthony Kennedy stayed a federal appeals court’s order halting Donald Trump’s effort to ban tens of thousands of refugees from the United States. Although Trump initially coupled this refugee ban with his broader Muslim Ban, Kennedy’s order still leaves several previous court decisions limiting the Muslim Ban in place.
The order is temporary, and will likely last until the full Court weighs the refugee ban.
Trump’s Muslim Ban order has two relevant parts. One bars foreign nationals from six predominantly Muslim nations from entering the United States. The other cuts the number of refugees that will be admitted in fiscal year 2017 from 110,000 to 50,000.
In June, the Supreme Court handed down a somewhat confusing decision allowing both parts of Trump’s order to go into effect, but with a significant limitation. “Foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States,” the Supreme Court held, are not subject to the ban while the Court gives the case a full review on the merits. Such a relationship can arise from a close family member in the United States, or from something like a job offer from an American company or an offer of admission to an American university.
Initially, the Trump administration tried to define who counts as a close family member very narrowly — excluding relatives such as grandparents, aunts, uncles, and cousins. An earlier round of litigation, however, repudiated the Trump administration’s narrow definition, and that issue appears settled for the time being.
What isn’t settled is a lower court order protecting refugees who do not have close family members in the United States. Last week, the United States Court of Appeals for the Ninth Circuit upheld a lower court order providing that refugees who “have a formal assurance from an agency within the United States that the agency will provide, or ensure the provision of, reception and placement services to that refugee” are not subject to the ban. This holding is quite significant, as any refugee admitted to the United States first obtains such a formal assurance.
The Ninth Circuit’s decision to affirm that order, it should be noted, was a bold move, because the Supreme Court previously stayed this order benefiting refugees, pending further review by the Ninth Circuit. That was a strong hint — a hint that the Ninth Circuit did not take — that there were five members of the Supreme Court who were unlikely to agree with the order benefiting refugees.
Kennedy’s decision to stay that order again is another sign that the broad order benefiting refugees is unlikely to survive.