The Supreme Court agreed Monday to take up the litigation over President Trump's travel ban, but ruled that the administration could start blocking nationals from six Muslim-majority countries who don't have relationships with U.S. citizens from entering the country.
Trump's Justice Department petitioned the high court to review the travel ban litigation and remove the blockades of the ban put in place by the 4th and 9th Circuit Courts of Appeals. The case making its way to the high court involves a second executive order Trump issued to implement the ban. The revised order aims to prevent nationals from six Muslim-majority countries — Iran, Libya, Somalia, Sudan, Syria, and Yemen — from entering the U.S. for 90 days.
"To begin, we grant both of the government's petitions for certiorari and consolidate the cases for argument," the Supreme Court said. "The clerk is directed to set a briefing schedule that will permit the cases to be heard during the first session of October Term 2017."
In regards to the preliminary injunctions thwarting Trump's ban, the high court lifted the blockades of the ban "to the extent the injunctions prevent enforcement of [the order] with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States."
"We leave the injunctions entered by the lower courts in place with respect to respondents and those similarly situated, as specified in this opinion."
Justice Clarence Thomas wrote an opinion concurring in the high court's decision to take the case but dissenting in its decision to lift only part of the lower courts' blockade of Trump's ban. His opinion was joined by Justices Samuel Alito and Neil Gorsuch.
"I agree with the court that the preliminary injunctions entered in these cases should be stayed, although I would stay them in full," Thomas wrote. "The decision whether to stay the injunctions is committed to our discretion...but our discretion must be 'guided by sound legal principles'."
Thomas' opinion also seemingly provides a hint about how he, Gorsuch and Alito think the case may be resolved next term.
"I agree with the court's implicit conclusion that the government had made a strong showing that it is likely to succeed on the merits — that is, that the judgments below will be reversed," Thomas wrote. "The government has also established that failure to stay the injunctions will cause irreparable harm by interfering with its 'compelling need to provide for the nation's security.'"
Thomas noted, however, that, it would have been reasonable, perhaps, for the court to have left the injunctions in place only to respondents themselves." But he wrote that the scope of relief provided by the Supreme Court is larger than what was requested by either party.
Thomas' opinion also expressed "fear" that the Supreme Court's remedy of determining which individuals have a "sufficient connection" to the U.S. would prove "unworkable." Thomas wrote that the high court's decision will prompt a "flood of litigation" until the travel ban case is resolved by the Supreme Court.
The justices entered their final scheduled conference of the term on Thursday, after setting an aggressive briefing schedule that meant both sides fully briefed the Supreme Court last week. Before arguments are set to begin in October, both sides likely will bicker over the issue of whether the Supreme Court should view the case as moot.
The 90 days from the effective date expressed in the order, and amended by Trump, will have expired by October unless additional changes are made to its text. The high court asked both sides to address the question of whether the challenges to Trump's travel ban became moot on June 14, 2017, when the ban's duration expired from the order's original effective date. Trump changed the order's effective date earlier this month and the Trump administration previously told the Supreme Court on June 14 that the case should not be considered moot because the ban never took effect in the first place.