On June 26, the United States Supreme Court issued a per curiam order staying in part two lower court orders that had preliminarily enjoined enforcement of President Trump’s executive order limiting entry in the nation by foreign nationals from six countries.  In its order, the Supreme Court used reasoning similar to that argued by United States Circuit Court Judge, and USC Law adjunct professor, Dennis Shedd in his dissent to the Fourth Circuit’s earlier decision upholding one of the injunctions in its entirety.

Both the Supreme Court and Judge Shedd, who teaches a course in Fourth Circuit Practice at the School of Law, cited Winter v. Natural Resources Defense Council, Inc. as precedent establishing the need for courts to balance equities when considering the imposition of a preliminary injunction.  Judge Shedd, in his Fourth Circuit dissent, had found that the District Court instead improperly implied a “least restrictive means” test to evaluate whether the President’s order appropriately addressed national security issues.  “The relevant point,” Judge Shedd wrote, “is not whether the temporary travel pause is the only way, or even the best way, to protect national security.  The simple fact of the matter is…that the temporary travel pause will in fact promote an important national security objective.”  He argued that the value of that objective “greatly outweighs” any harm asserted by the plaintiffs.

The Supreme Court similarly stressed the need for a court to balance equities when considering a preliminary injunction.  “The purpose of such interim equitable relief is not to conclusively determine the rights of the parties, …, but to balance the equities as the litigation moves forward.”  The Supreme Court then found that the lower courts had not adequately weighed the government’s national security interests in situations in which the foreign national has no connection to the United States. “To prevent the Government from pursuing that objective by enforcing [the executive order] against foreign nationals unconnected to the United States would appreciably injure its interests, without alleviating obvious hardship to anyone else.”