Terry H. Schwadron
As a practical matter, in the world of political winners and losers, the Supreme Court decision on the Travel Ban was neither. For those looking for clarity, it was a kind of do-over order.
Basically, the court allowed the limited ban against visitors from six mostly Muslim nations to go forward on a temporary basis before offering to hear the constitutional arguments in October — by which time the 90-day ban will have disappeared, of course. Indeed, it has been well more than 120 days since the first and second executive order were announced. What have we learned?
What made it a practical toss-up, if not legal, were two things:
· First, of course, the court did not review the fundamental issue; this was a question of reviewing the stay rather than the whole question.
· Second, the court made an important exception, saying that the 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.” So, students, those with relatives, those with business ties would be allowed to enter the country.
By October, the Trump administration should have its more formal recommendations for a long-term — or permanent — ban on travel from six specific countries — Libya, Iran, Somalia, Sudan, Syria and Yemen. Of course, this is Travel Ban II, the rewritten executive order that the President labeled “watered down.” While the court said was that they would hear a case about the president’s broad powers in immigration matters in a case that raises fundamental issues of national security and religious discrimination, it is most likely that the question will have changed by them.
In other words, the all-powerful Supreme Court sort of kicked the can down the road, apparently believing the constitutional challenge will simply melt away in the interim. The justices said they “fully expect” the government to be able to conduct its review within the 90-day span the executive order proposes.
It took President Trump exactly no time at all to crow about the result, reading only victory in the permission to proceed despite multiple lower court rulings against the fundamental law. The President called the ruling called the ruling “a clear victory for our national security.”
Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch broke from the majority to say that they would have let the ban take effect as written and objected to what they called the court’s “compromise.” Though the judgment was not signed, it seemed clear that it was choreographed by Chief Justice John Roberts.
The court probably could reach agreement by limiting the question to the stay and not to the underlying reasons. To you strict constructionists, Isn’t discrimination against groups based on religion a specific clause of the Constitution?
By the way, worried yet about hearing that Justice Anthony Kennedy may be thinking about retirement, opening the way for another Trump Supreme Court appointee?
The executive order will take effect by Thursday, when it will become the problem for customs inspectors and visa officials to determine not only the country of origin of visitors, but whether their offered reasons for visiting meet the court’s language about exceptions.
In his separate opinion, Justice Thomas seemed to say that this will be a huge hassle for officials. Determining the reason for a requested visa will “burden executive officials with the task of deciding — on peril of contempt — whether individuals from the six affected nations who wish to enter the United States have a sufficient connection to a person or entity in this country,” Thomas wrote. Such a compromise, the three justices said, will lead to a “flood of litigation” over what constitutes a “bona fide relationship” before the overall case is resolved after oral argument in the fall.
They added that the court has made an “implicit conclusion” that the administration will prevail.
For those among us who dislike all things reflecting complicated legalisms, this sounds like a bit of murky waters. It seems hard for me to believe that a dedicated terrorist won’t have some kind of acceptable “relationship” to the United States, a family connection, for example, or an educational or business reason to visit, even if it is a totally invented “legend” to make illicit entry. I doubt that any would-be terrorist described himself/herself as a terrorist.
I don’t see much reason for the optimistic Trumpist argument that this will ease national security thinking and procedures.
At the same time, how many Yemeni or Lybian tourists do we have who arrive with no particular reason or connection to the U.S.? And, over the last several years, the lower courts found, there were exactly zero terrorist attacks from people arriving from these six nations. Remember these six Muslim countries do not include Saudi Arabia, Iraq or now Qatar, identified by the President as a major terrorist funder nation, nor for that matter, North Korea, which may be a terror threat, but is not Muslim. It is hard to see how this activity is specifically not anti-Muslim, especially when they have been so-identified by the President himself in many speeches and tweets.
For me, this decision was a high and outside pitch, not a strike and not enough to resolve the issue. It just makes the next steps more difficult.