On June 26, 2017, the Supreme Court per curiam opinion granted the US Government's application to stay the "Muslim ban or not" injunctions to the extent that the injunctions prevent enforcement of Section 2(c), effectively barring foreign nationals from seven Muslim majority countries who lack any bona fide relationship with a person or entity in the United States. What that means, for now, is that if you are just a desperate refugee from one of the seven Muslim majority countries named in the Executive Order who is not physically in the United States — say a little boy or girl on a boat sinking in the Mediterranean — you are free to drop dead because the United States through its President's Executive Order and through its highest court has told you that it does not want you here for ninety days (an order I fully expect will be renewed before it expires later this year and before the next term).
The Court's view was that the injunction barred enforcement of the Executive Order against foreign nationals who have no connection to the United States at all. In those cases, denying entry to such a foreign national was said to not burden any American party by reason of that party's relationship with the foreign national. Moreover, they went on to note that the courts below did not conclude that exclusion in such circumstances would impose any legally relevant hardship on the foreign national himself, citing "[a]n unadmitted and nonresident...alien ha[s] no constitutional right of entry to this country." The Court was of the view that whatever burdens may result from enforcement of Section 2(c) against a foreign national who lacks any connection to this country, they are, at a minimum, a good deal less concrete than the hardships identified by the courts below.
If the refugee has no American tie, the Court reasons, their hardships are a good deal less concrete than those resulting from denial of admission when one has a family tie, school admission or job offer for employment.
As an American watching the desperation of the refugees, I find the Court's limitation of the cognizable burden to only those with certain types of relationships problematic. I do not have family, I have not admitted a student, nor have I given a job offer for employment to any of those boys and girls on a boat sinking in the Mediterranean. Yet their distress and that of their families burdens this American significantly. It burdens me as I know the history of the past 14 years at least from the second Iraq War started by the United States under false pretenses and its consequences.
Apparently my relationships with Americans or residents who fear for their families there who are internally displaced persons or refugees would not be enough for this Court. More broadly, reminding us of John Donne's poem (No man is an island...), my relationship with those desperate people through my prayers and faith — which happens to be Christian but could be any of a series of other religions or humanism — which calls me to carry their cross is apparently a form of burden on my religious faith that would not be enough for this Court.
What trumps these relationships is the incantation of the national security shibboleth and the Constitutional grant of powers to the President and Congress in a space where the Supreme Court tends to show great deference.
Now some may see the fact that there is a bona fide relationship limitation on the Executive Order as a step away from lockstep deference to the Executive that the concurring justices would have pronounced if they had been the majority. This decision certainly does not give a blank check to the Executive. But, by dismissing the burdens on Americans' other relationships with these desperate people, the decision seems to say that only some types of American relationships with foreigners are good enough. Those other relationships are just some form of insufficient funds, and the Supreme Court has chosen to close the accounts.
Some may say that we should not worry and look forward to this fall. My thought is with the persons who over this period will die who might have been helped if our law would have the kind of compassion that at so many times we have lacked as a country. Might I remind readers of the European Jews turned away before World War II, of the Japanese-American internments, of the Muslims brutalized since 9/11, of black lives matter, of the 69 country torture regimes put in place by the United States after 9/11 for which no high-level organizers have been held accountable while low-level soldiers were court-martialed or disciplined, or of death and destruction of Americans and foreigners in the Second War in Iraq started on false pretenses.
After all, the Supreme Court's decision was in equity, and the minimization of the equities with respect to these other relationships of Americans by the Court speaks volumes about what is considered important enough. And, given the hardships these foreign nationals suffer, to dismiss those hardships as not legally relevant does suggest a minimization of the grandeur of the law that does not do justice to American values. Just sayin'.
Benjamin G. Davis, professor of law, is a former member of the American Bar Association (ABA) Standing Committee on Law and National Security. He is a Founder of Advocates for US Torture Prosecutions. Davis led the adoption of the 2006 American Society of International Law Centennial Resolution on Laws of War and Detainee Treatment. Davis is an international expert on topics such as cyber dispute resolution, drones, detainee treatment, military commissions, torture and international law. He is a graduate of Harvard College (BA), and Harvard Law School and Harvard Business School (JD/MBA).
Suggested citation:Benjamin Davis, Supreme Court to Syrian (and other ) Refugees: Drop Dead, JURIST - Forum, June 27, 2017 - http://jurist.org/forum/2017/06/Benjamin-Davis-supreme-court-to-syrian-and-other-refugees-drop-dead.php
This article was prepared for publication by Dave Rodkey, Managing Editor for JURIST. Please direct any questions or comments to him at firstname.lastname@example.org