December 19, 2017 --

The U.S. Supreme Court, prior to hearing the matter on the merits on the Trump travel ban, issued a per curiam decison earlier this month, overturning stays issued by lower courts on the Trump action. In part, lower courts pointed to campaign statements by then presidential candidate Donald Trump on banning Muslims from entering the country.

The per curiam opinion effectively held that courts, in reviewing the travel ban executive order, should not consider campaign statements or the religious aspect, but should focus on national security requirements. In the opinion, the Court continued stays on the travel ban for "foreign nationals" who have a bona fide relationship with a person or entity in the United States."

The decision rejected stays "against foreign nationals abroad who have no connection to the United States at all." Accordingly, a student admitted to an American university, a worker given a job or a lecturer invited to speak was covered by the stay.

But, "a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion."

In a concurring opinion, Justice Clarence Thomas, joined by Justices Neil Gorsuch and Samuel Alito expressed concern that the per curiam opinion "will invite a flood of litigation".

Justice Thomas commented, "'[W]eighing the Government's interest in preserving national security against the hardships caused to respondents by temporary denials of entry into the country, the balance of equities favors the Government. I would thus grant the Government's applications for a stay in their entirety." For the text of the per curiam opinion, please google: Trump v. International Refugee Assistance Project. No. 16-1436.