It’s not often that immigration attorneys agree with conservative Justice Clarence Thomas.
But some believe he called it on the travel ban.
To be sure, the two sides disagree on the bottom line. Thomas, joined by Justices Samuel Alito and Neil Gorsuch, made clear in Monday that he thought President Donald Trump’s entire travel ban should be allowed to go into effect. Challengers of the ban wanted the court to keep the entire ban against entry from six majority-Muslim countries from going into effect.
Instead, the court compromised, which has only led to more confusion.
In an unsigned opinion, the justices said that only part of the travel ban could go forward. “Foreign nationals who lack any bona fide relationship with a person or entity in the United States” could be barred, the court ruled.
But what exactly is bona fide? Thomas was an immediate skeptic.
“I fear that the court’s remedy will prove unworkable,” he wrote.
The Supreme Court, Thomas wrote, was leaving it up to government officials to determine “on peril of contempt” whether individuals from the six affected nations seeking entry “have a sufficient connection to a person or entity in this country.”
And Thomas issued a warning: “The compromise,” he said, “will invite a flood of litigation” as parties and courts “struggle to determine was exactly constitutes a bona fide relationship.”
The Trump administration – keeping with a self imposed 72-hour deadline – released the guidance on Thursday. It interpreted the court’s opinion of “close family” as a parent, parent-in-law, spouse, child, adult son or daughter, son-in-law, daughter-in-law and sibling (including step relationships). But it did not include people like grandparents. At the last minute, it added fiancees as well.
Already, the state of Hawaii filed an emergency motion in federal court challenging the limits, asking to “clarify as soon as possible that the Supreme Court meant what it said.”
Thomas, immigration experts said, accurately saw the confusion coming.
“Why can a stepsister enter the United States but not a grandmother?” asked Stephen W. Yale-Loehr of Cornell Law School.
“Justice Clarence Thomas worried in his dissent earlier this week in the IRAP v. Trump case that the majority’s remedy to allow people with ‘bona fide relationship” to enter the United States would prove unworkable,” he said. “The State Department instructions issued last night prove he was correct.”
Leah Litman, a professor of Law at the University of California Irvine, believes the administration brought in a “buzzsaw.”
“I did not expect the administration to issue a guidance that embodies an extremely rigid and stingy interpretation of the court’s injunction,” Litman wrote in a Take Care blogpost. “Whatever gray areas there are, and whatever discretion there is in determining who has a ‘credible claim of bona fide relationship with a person or entity in the United States,’ that category does not lend itself to the brightline rules the administration has imposed on it.”