Maybe they should have just said that banning Muslims is unconstitutional.
On Monday, the Supreme Court handed the Trump administration a partial victory. It temporarily reinstated Donald Trump’s Muslim ban, but not for all people impacted by the ban. Under the Supreme Court’s decision in Trump v. International Refugee Assistance Project, the Muslim ban may not be enforced against individuals who have “a close familial relationship” with someone in the United States.
Significantly, the Supreme Court also gave two examples of family members who count as such close relations: a “wife” or a “mother-in-law” of someone within the United States.
Yet, the Court provided little other guidance on just how “close” a close familial relationship must be to overcome Trump’s ban, leading Justice Clarence Thomas to warn in a partial dissent that the majority opinion “will invite a flood of litigation until this case is finally resolved on the merits.”
That flood of litigation will soon be upon us. On Wednesday, according to the Associated Press, the Trump administration sent new guidelines to U.S. embassies, stating that someone subject to the Muslim ban “must prove a relationship with a parent, spouse, child, adult son or daughter, son-in-law, daughter-in-law or sibling in the U.S.” in order to escape the ban.
Notably, grandparents, grandchildren, aunts and uncles, nieces and nephews, cousins, and fiancés are not included in this list.
There is one glaring flaw in the Trump administration’s new policy. While it permits someone with a son or daughter-in-law within the United States to enter the country, the AP report indicates that a person with a father or mother-in-law in the United States does not receive the same treatment. It should go without saying that a son-in-law is exactly as closely related to their mother-in-law as the mother-in-law is to the son-in-law. So this exclusion is likely to be corrected by the courts.
But what of other family members? The Supreme Court neither resolved these questions nor left the lower courts with much guidance on how they should do so. The Trump administration, meanwhile, interpreted the Supreme Court’s order in the most narrow way it could be construed.
There’s good reason to believe that the lower courts won’t go for Trump’s tactic. Most of the courts that heard challenges to the Muslim ban, after all, deemed it to be unacceptable. Several issued broad, nationwide injunctions against the ban.
Even so, it appears likely that the Supreme Court handed down the opaque order it did, partially reinstating the Muslim ban in the process, because the justices are irked by lower courts issuing injunctions they view as too broad. If that is the case, the next several months could bring a tug-of-war between lower court judges trying to make sense of the Supreme Court’s order, and a much more conservative Supreme Court.
The Supreme Court’s take on the Muslim ban has already created a huge mess was originally published in ThinkProgress on Medium, where people are continuing the conversation by highlighting and responding to this story.