Dodge City
The Roberts court tries to have it both ways on Trump’s executive orders
On Monday, the US Supreme Court voted 9–0 (or really 6–3 — more on that later) to let President Trump’s reworked travel travel ban move forward, with a brief, three-word exception. That exception represents the hope of mitigating the worst of the order’s potential harm while insulating the Court from the political firestorm that is the Trump administration’s dealings.
Instead of lofty language or a suggestion of sweeping rulings on presidential powers, a majority-within-a-majority created an entirely new legal class of foreign nationals with three words never before invoked in relation to US-bound immigrants or refugees — those with a “bona fide relationship” to US citizens or entities.
The 13-page opinion throws judicial cold water on earlier opinions from the Fourth and Ninth Circuit Courts of Appeals that tried to sink even the revised travel ban.
The opinion from the Fourth runs through a litany of statements by candidate and President Trump as well as the content of the EO to argue that the order violates the establishment clause (i.e. it constitutes government discrimination on the basis of religion), while the opinion from the Ninth argues that banning up to 180 million people from entry to the United States on the basis of vague claims of national security is imprudent at best and unlawful at worst. The latter raised the tantalizing thought that the 1944 decision United States vs. Korematsu might be overturned — the case (still standing precedent) that backed up President Roosevelt’s legal authority to intern Japanese-American citizens during the Second World War.
Yet, as noted over in the Economist, the Roberts Court seems far more interested in preserving the Court’s independence than in wading into current clashes over imposing limits on what seems at times an unhinged executive branch.
Instead of lofty language or a suggestion of sweeping rulings on presidential powers, a majority-within-a-majority created an entirely new legal class of foreign nationals with three words never before invoked in relation to US-bound immigrants or refugees — those with a “bona fide relationship” to US citizens or entities.
This legalese allows Chief Justice Roberts and allied judges on the more “liberal” side of the court to sidestep intense criticism from either side — giving the Trump administration the outward appearance of victory while providing a (vague) legal safety valve on the other to prevent particularly egregious miscarriages of justice on the Court’s watch.
While a conservative triumvirate of Justices Thomas, Alito, and Gorsuch (surprise, surprise) call out the majority opinion for hedging its bets — “neither party asks for the scope of relief that the Court today provides” — this approach seems sufficient to avert a head-on collision between the Court and the President. By the time the Court actually hears the case, the “temporary” travel ban may have already run its course — assuming the administration’s word on this is something to be trusted. This is a big-league if, of course.
In the meantime, establishing bona-fide-relationship status becomes the new legal and political battle for fighting any potential harm to US-bound folks from the six countries mentioned in the EO: Iran, Syria, Libya, Somalia, Yemen, and Sudan. It’s a battle that will be played out in overseas embassies and individual courtrooms farther from the public eye. The order will likely further empower consular officers at overseas embassies on the front lines of granting visas; Kerry v. Din (2015) already asserted that such officials need not explain their actions when denying visas for reasons related to national security.
Back at home, much depends on how the Trump administration chooses to take its victory — if Jeff Sessions and others choose to exploit the ruling to the hilt, it won’t be hard to make life quite difficult for prospective refugees and immigrants from the six countries. For now, American’s only recourse is to keep up with the ACLU donations and pester any US “entity” you might work for to be as committed as can be to providing the legal resources and information to ensure that the phrase “bona fide relationship” is interpreted as widely as possible.
Andrew Leber is based in Boston.
