President Trump has called the Supreme Court’s ruling Monday on the second version of his travel ban a major triumph for his anti-terrorism and homeland security policies. Having read the decision, I’m a lot less sure. Moreover, it looks like the administration’s policymakers might have undercut some important principles that their lawyers had originally asserted.
First of all, it needs to be remembered that the Court specified that its reasoning in this decision was not based on the same criteria that would be used for a final ruling. Why not? Because, as it explained, it was being asked by the Trump administration to stay an injunction from lower courts preventing enforcement of the key ban provisions. In plain English, the Supremes were responding to an administration request to suspend temporarily lower court orders (injunctions) that blocked the federal government from putting into effect the revised Executive Order on the subject, and a majority of the justices agreed to do so – in part.
According to the majority, this ruling was tailored precisely to standards it considered appropriate for stay orders. It further explained that these standards were close to the already relatively low bar it found needed to be met for granting plaintiffs’ requests for injunctions. When the Court decides the final case, these Justices explained, it will rely on somewhat different legal standards and considerations.
That sounds reasonable enough. But I fear that an especially dangerous conclusion the Court arrived at could well find its way into that final ruling, and it has to do with the President’s ability to keep out of the country travelers or refugees (whose applications were also suspended by the Executive Order, and whose entry quotas were reduced) who are judged to have some significant connection with persons or institutions in the United States.
Simply put – and again, by the standards it set forth for stay decisions – the Justices held that the government has great authority (it didn’t specify how much) to control entry into the United States when the traveler or the applicant “lacks any bona fide relationship with a person or entity in the United States.” But when the traveler or applicant has such a “bona fide some connection to this country,” the government’s control over the border is significantly qualified.
The Court didn’t define “bona fide” either, but the examples it used from the lower court decisions (on whose behalf the travel ban legal challenges were pursued) include the mother-in-law of a citizen, the wife of a legal permanent resident, and students from the six countries covered by the proposed ban who were admitted to the University of Hawaii. The Court’s rationale? Barring the admission of such would-be travelers or refugees even temporarily (remember – the Trump proposals call for 90-day suspensions for travel from the six, and a 120-day suspension of refugee admissions) would “harm” the interests of the plaintiffs (the son-in-law, the husband, the students, the university) to such a degree that this harm outweighs both the government’s right to control the country’ borders and “the overall public interest” (the decision-making framework it specified for stay orders in this field).
Again, the Justices said they would use different standards, and weigh the competing considerations, in a different way in their final ruling. But the above certainly suggests that at least some of those in the majority aren’t terribly receptive to the idea, originally advanced by the administration, that the president – as the relevant statute says – without exception can “suspend the entry of all aliens or any class of aliens” to the United States “whenever [he or she] finds that the entry of any aliens or of any class of aliens…would be detrimental to the interests of the United States.”
Now it may seem entirely understandable to ask how admitting into the country someone’s wife or mother-in-law could endanger national security. Let’s leave aside the question of when in U.S. history judges won the right to question what are inevitably judgment calls in the conduct of foreign and defense policy (which the Court’s ruling didn’t broach directly). Let’s also remember that the final decision will reflect a different set of legal and other factors.
What’s still odd, however, about this argument is that one of the seminal justifications for a U.S.-style legal system is that prioritizing process in considered the best way to ensure the greatest number of just outcomes. In this stay ruling, the majority seems to be saying that the Executive Order’s legitimacy could be in jeopardy because it has simply he has “burdened” certain individuals. Further, we’re not talking about lawsuits that affect mere handfuls of people on either side. Although it’s “only” a stay decision, an anti-travel ban ruling could endanger the entire country (precisely because national security is involved). Don’t such stakes deserve special attention?
And here’s the kicker: In arguing for their focus on specific individuals and their misfortunes, the majority was able to cite the Trump administration’s own decision to mollify critics of the original travel ban by including in the second version “a case-by-case waiver system primarily for the benefit of individuals” who do claim “bona fide connections to Americans or American entities.” So that train could well have left the station legally.
How much better for the administration to have held firm at least for the brief durations of their travel ban and refugee suspension, and then having its unfettered authority to regulate these flows affirmed, voluntarily included a review or appeals process in its longer-term programs.
Presumably because issuing a stay order depends on such a specific set of criteria, and because judges generally prefer to decide cases on the narrowest possible grounds, this latest travel ban judicial decision failed to deal in explicitly and in detail not only with several major issues raised by the Executive Order and the challenges it has generated.
As indicated above, the ruling did not address the extent to which (if any) courts can challenge presidential foreign policy judgments where expressly Constitutional questions over defined governmental responsibilities (such as war-making power) do not arise. It also only glancingly referred to claims that the second Executive Order unconstitutionally discriminates against Muslims as such (violating their religious freedoms), and the related issue of whether a politicians’ campaign statements, including those made as a private citizens, represent valid evidence of a policy’s intent.
But when it comes to immigration- and refugee-related issues, some Justices in at least one recent case has acted in a disturbingly political and frankly ditzy way – equating lying on an immigration form about a spouse’s involvement in war crimes with lying on that form about a speeding ticket. (This case is still up in the air.) Sadly, given the rancor and division that’s infected so much of America’s public life, there’s no guarantee that the Court will keep its head any better. on the Trump Executive Orders.