Why the Supreme Court’s Travel Ban order is a stunning defeat for Donald Trump
Yesterday, the US Supreme Court issued a per curiam decision granting certiorari and partially granting the Trump Administration’s request to let its travel ban against 6 predominantly Muslim countries go into effect. The White House issued a statement from the President calling the decision a “clear victory” and the President — as we have come to expect — quickly took to Twitter to boast that the decision was unanimous, tweeting, “I am also particularly gratified that the Supreme Court’s decision was 9–0.”
The problem for Trump is that his Travel Ban “victory” was about as “clear” as the “record breaking crowds” at his sparsely attended inauguration. Far from siding with Trump, the Supreme Court, in a lopsided vote, handed him yet another remarkable loss. Here’s why:
The Trump administration had pleaded with the Supreme Court to let the Travel Ban go into effect relying on the President’s broad and unique authority when it comes to matters of national security. The federal courts, the Acting Solicitor General all but said, have no business reviewing the president’s national security decisions:
[W]hen the President does disclose his reasons for deeming certain nationals to present a risk to national security, courts are “ill equipped to determine their authenticity and utterly unable to assess their adequacy.” The court of appeals therefore seriously erred in holding that Section 1182(f) subjects the President’s assessment of harm to the Nation’s interests to judicial review under a standard of the court’s creation akin to review of agency action under the APA.
Yet, despite a long tradition of deferring to the President’s authority over national security, the Supreme Court did not buy Trump’s argument. Instead, the Court essentially rebuked the President and upheld the injunction on a significant portion of Trump’s travel ban. The idea that this was a “clear victory” overlooks the significance of Court’s action.
Far from deferring to Trump’s determination that citizens from Iran, Syria, Sudan, Somalia, Yemen and Libya were a danger to national security, a 6–3 majority of the justices left the core of the nationwide injunction in place, ruling that Trump’s travel ban “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” Then, as if to underscore the point that families should not be divided, businesses should not be hamstrung and refugees should not be denied protection, the Court listed examples of people who would be permitted to travel to the U.S. under the injunction, including: a person who wishes to enter the U.S. to visit a family member, such as a wife or mother-in-law; students admitted to schools in the U.S.; workers who have accepted an offer of employment from a U.S. organization; a lecturer invited to speak to an American audience or a refugee with a bona fide relationship with a U.S. entity.
Importantly, the Supreme Court’s list of examples was not exhaustive but illustrative. The justices seem to have left the phrase “bona fide relationship” open to interpretation. Perhaps a recognition of the crucial role the federal courts have thus far played in protecting the constitution since January 20, 2017.
Nor did the Supreme Court limit the bona fide relationships to those already in place as of June 26, 2017, the date of its order. That means a Syrian student accepted by a college in the U.S. next week or Iranian professor invited to conduct research by an American university next month should be covered by the nationwide injunction and permitted to travel to the U.S. According to the plain language in the Supreme Court order, the Syrian student and the Iranian professor would be able to establish a bona fide relationship with a U.S. entity. The same goes for other nationals of the 6 banned countries, including refugees, as long as they don’t enter into the relationship with an American person or organization to avoid the Travel Ban.
What the Supreme Court did, in essence, was offer a minor tweak to the nationwide injunction on the Travel Ban and permit a temporary pause in the admission of individuals from the covered countries who cannot show a “bona fide relationship” to a U.S. person or entity. As expected, the Court’s reasoning was based on its traditional deference to the Executive on matters of national security, but only in the narrowest of terms:
[T]he government’s interest in enforcing §2(c), and the Executive’s authority to do so, are undoubtedly at their peak when there is no tie between the foreign national and the United States. Indeed, EO-2 itself distinguishes between foreign nationals who have some connection to this country, and foreign nationals who do not, by establishing a case-by-case waiver system primarily for the benefit of individuals in the former category…The interest in preserving national security is ‘an urgent objective of the highest order.’…To prevent the Government from pursuing that objective by enforcing §2(c) against foreign national unconnected to the United States would appreciably injure its interests, without alleviating obvious hardship to anyone else.
Those affected would appear to be predominantly tourists and refugees with no ties to the U.S. But the effect of the travel ban on this subgroup will likely be negligible. That’s because visitors applying for tourist or business visas must prove they have no intent to immigrate to the U.S. before they are issued a visa. Ironically, visitor visa applicants with strong connections to the U.S. — such as a close family member — are often denied visitor visas precisely because of the connection. That’s because having a close family member present in the U.S.may lead a U.S. consular officer to believe the person will stay in the U.S. and, therefore, deny the visa under existing law.
Of course, the real concern after yesterday’s ruling is not that the Supreme Court made a problematic tweak to the nationwide injunction, it’s the question of how the Trump administration will act. In reality, anyone who reaches U.S. soil with a visa has already established “bona fide” ties to a person or entity in the United States. Otherwise, they wouldn’t be here. Yet, there are already indications that U.S. Customs and Border Protection officials at the ports of entry have been directed to conduct extensive interviews, research and database review for each person arriving from any of the 6 countries covered by the ban — presumably to determine whether a traveler has a bona fide relationship with U.S. person or entity. We have already witnessed the chaos of travelers stuck at airports around the country as a result of Trump Administration-driven government incompetence and seen examples of how agents in Trump executive branch departments have outright refused to follow stated rules and procedures as outlined by past court rulings.
The Supreme Court’s ruling makes clear that the overwhelming majority of citizens traveling to the U.S. from the 6 countries targeted by the Trump Travel Ban should be admitted upon arrival.
Let’s hope, and ensure, that the Trump administration breaks with tradition and shows respect for the courts and the law.
