The positive part of this morning’s Supreme Court order, which narrows the stays lower courts have imposed to block President Trump’s so-called travel ban, is the part you don’t see. Implicit in the Court’s unsigned ruling is a rejection of the anti-Trump presumption adopted by the lower courts. Those tribunals (in the Fourth and Ninth Circuits) essentially based their rulings on the novel premise that Trump’s executive orders should not be considered on their face — i.e., on the terms set forth in the four corners of the travel ban. Rather, they must be seen through the prism of anti-Muslim animus said to radiate from the campaign rhetoric of candidate Trump and his surrogates.
As Justice Clarence Thomas points out in his separate opinion (joined by Justices Samuel Alito and Neil Gorsuch), when the Court reviews a stay, it is essentially assessing whether lower-court rulings will be ultimately reversed on the merits. There would be no reason for the Supreme Court to narrow the lower-court stays of the travel ban if the justices were of a mind to concur in the lower courts’ reasoning.
The short per curiam opinion does not delve into the most controversial aspect of the travel-ban litigation to date, namely: whether there ought to be what I’ve called a new “jurisprudence of Trump,” in which this president’s orders and actions are judged differently than would the same orders and actions if carried out by other presidents. Still, it seems likely after today that a majority of the justices would resolve that issue in the president’s favor. That is worth celebrating.
So why not celebrate?
Well, it seems highly unlikely that the Court’s left-wing bloc (Justices Ginsburg, Breyer, Sotomayor, and Kagan) is averse to a jurisprudence of Trump — indeed, Justice Ginsburg was stunningly intemperate and inappropriate in her pre-election remarks about the GOP nominee. So the question is: Why did they go along with today’s ruling?
For the same reason that caused Justices Thomas, Alito, and Gorsuch to file a partial dissent: This ruling is unworkable and actually doesn’t much narrow the lower-court stays.
Let’s try to keep it simple here. The lower courts granted standing to challenge the travel ban to American persons and entities that had special relationships with aliens outside the United States. Ostensibly, the lower courts claimed that the rights of these Americans were harmed by the travel ban’s exclusion of aliens — specifically, aliens who a) are close relatives whose exclusion would deny family reunification to an American; or b) are scholars whose exclusion would deprive their contributions to American universities that had extended offers to them. In effect, however, the lower courts were vicariously granting American legal rights to aliens outside the United States, despite the judges’ grudging admission that the aliens technically had no such rights.
In its order this morning, the Supreme Court did not disturb this arrangement.
To be sure, the justices rejected the lower courts’ extension of vicarious rights to aliens who did not have such special “bona fide relationships” with American persons or entities. The lower courts’ reasoning for that extension heavily relied on the imputation to Trump of anti-Muslim bias — that’s part of why we can infer that most of the justices are not persuaded by that rationale. Nevertheless, six of the nine justices, at least for now, appear inclined to rule that Americans in these “bona fide relationships” with aliens have not only standing but legal interests sufficiently compelling to block enforcement of presidential orders that address national-security threats.
This is disturbing both in terms of the justices’ logic and the outcome they have wrought.
First, bear in mind that what is called the “travel ban” is not a ban. It is a very temporary travel restriction — to last no more than four months, and in some instances just 90 days — while the administration works out new vetting procedures for immigrants, non-immigrant aliens, refugees, and asylum seekers. In imposing the temporary ban, the president cited national-security needs and relied on a statute giving him sweeping authority to issue temporary restrictions. Thus, according to the justices, Americans and aliens in these “bona fide relationships” do not just have interests that outweigh the president’s national-security judgments; these interests are so paramount that they cannot be shelved even for a brief 90- or 120-day period. That is absurd.
Second, the justices could have limited their ruling to only the litigants in the underlying cases whose specific bona fide relationships have already been recognized by the lower courts. This would not have closed the door on other cases of hardship. As the Supreme Court observed, Trump’s order provides for case-by-case waivers of the “ban.” These enable the administration to permit entry in extraordinary circumstances.
Rather than adopt such a judicially restrained approach, the Court instead legislated its own exemption from Trump’s order. Specifically, the justices invite American persons and entities “similarly situated” to those in the lower-court cases to seek admission of any aliens with whom they have these “similar” bona fide relationships. And like good legislators who realize they may be opening the floodgates, the justices then undertake to narrow the exemption they have just created by hypothetical examples of what would and would not constitute a “bona fide relationship.”
In other words, while judges are supposed to resist advisory opinions on fact patterns that are not actual cases or controversies before the court, the Supreme Court’s order is exactly such an advisory opinion. And it does so with respect to a judicially legislated exemption that was totally unnecessary, there being no hardship that could befall an American in a special relationship with an alien that a) outweighs national-security concerns and b) cannot either wait a few months or be addressed under the travel ban’s provision for relief in extraordinary cases.
The practical effect of this is that activists for aliens whose travel has been restricted will now file new lawsuits challenging Trump’s order. They will argue that their “bona fide relationships” with American persons qualify. Worse, as Justice Thomas points out, the new lawsuits will surely feature the same forum-shopping shenanigans we have already seen, with new claims perhaps “directed to the two District Courts whose initial orders in these cases this Court has now — unanimously — found sufficiently questionable to be stayed as to the vast majority of the people potentially affected.”
The practical effect of this is that activists for aliens whose travel has been restricted will now file new lawsuits challenging Trump’s order.
I believe the Court is calculating that it may never have to grapple with the merits of the travel ban cases, even though it has agreed to review them next fall. Today’s ruling means Trump’s order is now in effect. (There is dispute over whether parts of it were already in effect.) It will thus have run its course by some time in October. In the interim, the administration will presumably have designed new vetting procedures that supersede the temporary travel ban. That is, the travel ban will be a moot issue. By October or November, we will be on to the inevitable litigation over the new vetting procedures.
If that is the case, the Court has probably done Trump a favor. As I have been arguing, the executive orders in question have been a disaster because they provide no meaningful improvement in security, yet the litigation over them has done serious damage to the overarching goal of an improved vetting system. In order to defend the president from the claims of anti-Muslim bias, the administration has argued that the travel-ban orders have nothing to do with Islam. Thus, the administration has been lured into supporting, at least tacitly, the proposition that restrictions on alien admissions would be constitutionally invalid if they took Islam into account.
Yet, without taking Islam into account — i.e., without sorting anti-American sharia supremacists from pro-American Muslims supportive of the Constitution — there is no way to restrict the entry of Muslims who would increase the threat of jihadism and undermine our society. That is, if we cannot vet for sharia supremacism, there is little point in what Trump calls “extreme vetting.”
Have you watched President Trump’s recent canoodling with the Saudis? Have you noticed the Trump State Department’s intervention on behalf of terror-supporting Qatar and reluctance to crack down on the Muslim Brotherhood? I have, and it bolsters my long-held suspicion that, when push comes to shove, the Trump administration does not really grasp what “radical Islam” is and would have no stomach for a battle over factoring sharia-supremacist ideology into account when vetting aliens who seek to enter our country.
I’d love to be wrong. But if I’m right, we will eventually remember the extensive, strident travel-ban litigation as much ado about nothing.
— Andrew C. McCarthy is a senior fellow at the National Review Institute and a contributing editor of National Review.