Has the Travel Ban Already Been Defeated?

by Rich Lowry

Reports tonight are that the administration won’t immediately take the executive order case to the Supreme Court and it may re-write the order. I’m with those, including Charles Krauthammer as related in the post below, who think this makes a lot of sense.

Consider the the current state of play: Unless the administration has some clever stratagem that pulls a legal rabbit out of a hat, it’s hard to see how the travel ban hasn’t already been effectively defeated. With every day that passes with the ban suspended, the case for its rapid imposition (stopping dangerous people from flowing here) as well as its overall rationale (to allow for a pause while better procedures are established) gets weaker. Any radical who was on the verge of coming here prior to the ban is presumably on his way now, and there’s nothing stopping the administration from setting up tighter procedures while the executive order case is proceeding, which makes the argument for re-imposing the ban at some later date if the case is somehow decided in the administration’s favor more tenuous.

The backdrop here is what appears to be a legal box canyon. If the administration did take its argument up to the Supreme Court, it seems likely that it would lose, assuming that the Court even takes the case now (it might  very well pass, letting the inevitable preliminary injunction that will come from Judge Robart and the 9th Circuit play itself out). Maybe the administration can delay, waiting for Judge Gorsuch to get confirmed, but even with him on the Court, victory is not assured.

The administration, though, has the unilateral power to re-shape the debate and moot the current proceedings. It could re-fashion the executive order by, say, removing the issue with lawful permanent residents and giving up on the temporary ban, while focusing on stricter vetting through visa issuance procedures at the embassies and via secondary screenings at the airports. This wouldn’t make the legal attacks go away. But it would shift the terrain in the administration’s favor at the same time it wouldn’t give up the core of the policy, as Krauthammer persuasively argues. Remember: the temporary ban is not supposed to be about the temporary ban, but about providing a bridge to stricter vetting.

An opponent of giving any ground whatsoever might say there is an important principle at stake here about an over-reaching judiciary, and of course there is. But that makes it all the more important to fight shrewdly, and the current path seems likely to provide the occasion for very bad law that is a enormous victory for the Left on immigration going forward (just read the 9th circuit ruling for the worst case). So, there is a good argument that the best tack isn’t SEE YOU IN COURT, but SEE MY NEW EXECUTIVE ORDER.

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