In the wake of multiple lower court rulings preventing President Trump’s arbitrary travel bans against citizens from seven and then six countries, many liberals acted with relief at the apparent willingness of the courts to check Trump’s authoritarian tendencies. This relief may, however, have been premature. Today, the Supreme Court issued an order that will allow the ban to go into effect, at least in some cases. And there is a very real chance that when it hears the case in the fall, the Court will ultimately rule that the travel ban is mostly or entirely constitutional.
Trump immediately issued a statement calling the order a “clear victory,” and for once he’s probably not wrong (with the qualification that the victory is his, not the country’s). As former Solicitor General Walter Dellinger argued over at Slate, the best outcome would have been for the Court to refuse to hear the cases and allow the lower court injunctions to remain in effect. This probably would have compelled the Administration to revise the bans, and would have prevented these sloppy pretexts for anti-Muslim animus from being used to deny people entry into the country.
This isn’t what the Court did. Instead, it agreed to hear the case in the Fall Term. And, in addition, the ban will go into effect within 72 hours, with the exclusion of those “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” People living in the six covered countries who do not have a history of residing in, or family in, the United States, or some other established relationship, will be subject to the ban while the Court considers its constitutionality.
This state of affairs is only temporary, of course. The Court will have to determine whether the travel ban is a legitimate exercise of statutory authority, or whether it violates constitutional and/or statutory prohibitions against religious and racial discrimination. It is not clear how the Court will rule—but regrettably there’s a good chance that the end result will be an even bigger “victory” for Trump.
The lower court rulings against the ban show that there’s indeed a solid case against the legality of the ban. But a deeper look indicates cause for real concern. It is true, for example, that a three-judge panel from the 9th Circuit of appeals prevented the ban from going into effect, while indicating that the legal arguments against it were strong. While the larger court left that ruling in place, however, five conservative judges dissented, arguing that the ban was constitutional.
The problem going forward is that the 9th Circuit is considerably more liberal than the Supreme Court. Chief Justice John Roberts and Justice Anthony Kennedy, whose votes are likely to determine the constitutionality of the ban, have much more in common with the 9th Circuit dissenters than with the majority. (One of the 9th Circuit dissenters, Judge Alex Kozinski, is a former Kennedy clerk who has maintained a warm relationship with his fellow Californian.)
Perhaps even more disturbing than the 9th Circuit vote lineup is the rationale. The majority argued that Trump’s tweets and campaign statements describing his desire to enact a “Muslim ban” are relevant evidence of discriminatory intent, as indeed they are. They are not dispositive evidence—the Administration could still show that the travel bans are carefully crafted and do not reflect discriminatory intent, although that would be tricky given the slapdash process by which the bans were conceived. But they certainly are relevant evidence.
The 9th Circuit dissenters, however, disagreed. As Ian Millhiser of ThinkProgress puts it, the dissent asserted that “courts may not dig into the true motives animating Trump’s Muslim ban in order to determine whether it was motivated by unconstitutional religious bias.” If crucial evidence of discriminatory intent cannot be considered, it would be almost impossible for the challengers to win, given the broad authority the executive branch enjoys over immigration.
The three most conservative members of the Court—Trump nominee Neil Gorsuch and Justices Clarence Thomas and Sam Alito—are nearly certain to rule the ban constitutional. All three justices dissented from the part of the Court’s order preventing the ban from being enforced against foreign nationals with a pre-existing relationship with the United States, and would have allowed the entire ban to go into effect this week. It would be shocking if any of these three justices held Trump’s ban to be unconstitutional.
With the four Democratic nominees likely to follow the lower courts in declaring the bans unconstitutional, the question is whether Roberts or Kennedy might be a fifth vote. We cannot be certain either way. But both the split of the 9th Circuit on partisan lines and the Court’s decision to hear the case are not very good signs. The smart money would be on a 5-4 decision upholding Trump’s travel ban as a legitimate exercise of presidential authority, despite the strong evidence of discriminatory intent.
Last week, the Supreme Court held that executive branch officials were immune from civil suits resulting from constitutional violations after 9/11. In his dissent, Justice Breyer detailed the ugly history, from the Alien and Sedition Acts to the internment of people of Japanese origin in World War II, of excessive deference to the executive branch during wartime. Specious national security justifications have time and again been used to justify the suppression of political dissenters and racial minorities while the Supreme Court has looked the other way. It is too early to know for sure, but Trump’s travel ban may well become the next cautionary tale.