Trump's Travel Ban Is Far from Dead

The administration is appealing to the Supreme Court, setting up the most important legal fight of the year.

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Jun 2 2017, 10:15pm

A January protest against the ban. Photo by Zach Gibson/Getty Images

On Thursday, Donald Trump's Department of Justice filed the paperwork needed to bring the battle over the president's "travel ban" to the Supreme Court's attention. That means that the signature legal battle of the young administration is approaching a climax, and Trump's most controversial executive order may soon be judged by the country's top jurists.

The first version of the ban, an executive order issued in January, halted all refugees coming into the US for 120 days and all Syrian refugees indefinitely. It also blocked citizens of seven Muslim-majority countries from coming to America for 90 days. During these freezes, officials were supposed to review and reform vetting procedures for refugees and people from those and other countries. The travel ban's sudden and confusing rollout sparked nationwide protests, and critics accused Trump of enacting a de facto "Muslim ban," something the president and his advisers had talked openly about.

After the courts temporarily blocked its implementation, the administration came out with a second and less harsh iteration via an executive order issued in March. The new document spent more time outlining its legal justifications, eliminated its indefinite prohibition on Syrian refugees, excluded Iraq from the list of banned nations, and provided a number of clear exemptions to that ban. But it otherwise maintained the same basic structure: These restrictions were meant to be temporary and to primarily serve to free up time and resources to facilitate the review and revision of vetting procedures.

That blunted version of the ban, however, has also been blocked by federal judges who say that Trump and his team's language indicate that it is still a veiled attempt at discrimination against Muslims. One case in Maryland, ruled on by the Fourth Circuit Court of Appeals last week, blocked just the travel ban part. Another case, still pending in the Ninth Circuit Court of Appeals, blocked the travel and refugee bans entirely along with the reviews.

Yet legal experts and court watchers tell me that, despite the Trump administration's repeated defeats in lower courts, the Supreme Court is not only likely to take the case on, it's also very possible it could uphold the ban.

Under normal circumstances, legal scholar Douglas Laycock told me, the Supreme Court would decide whether or not to review this case by October or November, then make a decision early next year. But the administration is urging justices to expedite this process in the hopes they can get a verdict by winter. It has also asked the court to lift the injunctions placed on the ban by lower courts, which would allow the government to finally implement the order even before the Supreme Court case proper could begin to review its legitimacy.

Constitutional law scholar Anna Law told me the Supreme Court will likely wait to act on the case until the Ninth Circuit Court issues its ruling. If those judges rule against the travel ban, as seems likely, the consensus of the lower courts could give the Supreme Court an excuse to turn away the hot potato being sent its way. However, noted Laycock, "It is hard for them to deny review when the petitioner is the president… especially when he says national security is at stake."

The Ninth Circuit could choose to unblock parts of the ban, said constitutional law expert Josh Blackman, allowing the administration to begin its review and revision of vetting processes even if not every aspect of the ban, like the actual travel restriction, in place. If that review wrapped up before the Supreme Court was able to hear the case, which Blackman believes would likely happen given the timetables involved, then the court would have no practical reason to hear the case and would likely drop it.

Even without that Ninth Circuit ruling, if the Supreme Court decided to lift all the injunctions, that would allow the ban to go into effect, explained Aziz Huq, a constitutional lawyer involved in litigation in one of the cases against the ban outside of the Fourth and Ninth circuits. If it ran its course before the case properly commenced, that would likewise negate the need for the Supreme Court to actually hear the case and rule on the ban's overall legitimacy.

However the barriers to a lifting those injunctions are high. It would require the administration to prove the country would face imminent harm without the travel ban. Five Supreme Court justices would have to approve the lifting of those injunctions, whereas the decision to take on the case only requires four votes. Huq and Law both doubt the court will go along with that request.

Some have argued that the court could try to rule narrowly on technical aspects of immigration law to decide the case—in other words, avoiding the question of whether the ban was discriminatory. But all the experts I've spoken to agree that the unique aspects of this case will push the justices to make a significant ruling on how much oversight the courts have over the president's ability to control immigration through executive orders.

The administration obviously wants the courts to only look at the text of the executive order, not old comments Trump has made about a "Muslim ban." This argument has been rejected by most (but not all) judges who've tackled the case. They've urged the president to show them proof of the need for the travel ban, which he has consistently failed to offer. However many current Supreme Court justices have a history of extreme deference to the president on immigration decisions.

Blackman also argues that while the lower courts have relied on a 2015 decision by Justice Anthony Kennedy that they say allows them to review executive actions for bad faith motives, they've actually misinterpreted that judge's words. Blackman believes that Kennedy, a notorious swing voter many observers think could decide this case in a 5-4 decision, would likely rule in favor of the ban because the text of the order itself is sound and, in his eyes, Trump and his allies' external statements would be irrelevant.

But it's difficult to guess how Kennedy or any of the other justices will ultimately vote. It's possible they could surprise observers and refuse to defer to the president, in the process ruling that the courts can, in limited circumstances, scrutinize a president's motives beyond those offered in the text of an action.

But no matter which way it rules, by tackling the travel ban the Supreme Court will be forced to make a huge judgment on the powers of the presidency in immigration, which as Law points out is a sector where the executive branch has a lot of leeway. Either the ban will be allowed to go into effect, and in the process the courts will reaffirm that Trump and his successors can pursue whatever twisted immigration agendas they like so long as they hide them under sound legal language. Or the ban will fall, meaning the presidency will forever face a new constraint on its executive powers.

"The precedent set by this case for the judiciary's proper role in reviewing the president's national security and immigration authority will transcend this debate, this order, and this constitutional moment," the Department of Justice wrote in its petition for review to the Supreme Court. They meant this as an caution to the Supreme Court, but it is nonetheless a rare Trumpian truth.

Follow Mark Hay on Twitter.

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