Politics & Policy

As Predicted, Supreme Court Kicks Can on Trump’s So-called Travel Ban

(Jonathan Ernst/Reuters)
Trump’s newly issued travel ban is carefully enough crafted that it will be very difficult to challenge on grounds of anti-Muslim bias.

In late June, when the Supreme Court kicked the proverbial can down the road on President Trump’s so-called travel ban, we surmised that the justices intended to avoid ruling on the matter altogether. With some tinkering, the High Court allowed the executive order’s restrictions on alien entry to go into effect, knowing they were temporary — scheduled, by their own terms, to last only three or four months (depending on whether an alien was an ordinary visa applicant or a refugee). By the time the Court’s new term commenced in October, the restrictions would be mooted by their expiration and/or replacement by revised guidance.

That is what has happened.

On Sunday, the president issued new guidance, superseding the former restrictions with an indefinite (but highly qualified) ban that substantially modifies the prior orders. On Monday, the Court canceled its scheduled October 10 hearing on the prior executive order.

The White House had portrayed the Court’s unsigned June 26 ruling as vindication because it permitted the president’s travel restrictions to take effect after the lower courts had blocked them. I countered at the time that it was not much of a victory (for reasons we’ll get to momentarily), but that by allowing the administration to proceed, the Court was

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. [The June 26] ruling means Trump’s order is now 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.

That is where we are now headed.

To recap, the temporary restrictions initially announced during President Trump’s first week in office applied to seven Muslim-majority countries: Iran, Iraq, Syria, Libya, Yemen, Somalia, and Sudan. Iraq was removed when the restrictions were revised on March 6. The new order issued Sunday (September 24), announces an indefinite travel ban. It drops Sudan from the list, but adds Chad, North Korea, and Venezuela.

Trump did not come up with the original seven countries on his own. They were cited in legislation signed by President Obama that related to the Visa Waiver Program (section 1187(a)(12) of federal immigration law). Nevertheless, because of Trump’s campaign rhetoric against radical Islam — which, Trump being Trump, was colorably alleged to be anti-Islam — critics attacked the travel restrictions as the product of bias against Muslims.

This political attack, led by the familiar Islamist–Leftist alliance, should not have gained legal traction. The restrictions were religion-neutral on their face; they did not affect about 85 percent of the world’s Muslims; and they focused on countries whose governments were either dysfunctional or overtly hostile to the U.S. They were also wholly consistent with (a) the president’s constitutional duty to protect the nation against foreign threats, and (b) statutory law (section 1182(f) of federal immigration law), which empowers the president to promulgate restrictions whenever he judges the entry of any class of aliens to be “detrimental to the interests of the United States.” That is, regardless of what one thought of the merits of the policy (I’ve argued that it is counterproductive), it was patently valid: Within the scope of presidential power and addressed to the practical impossibility of conducting responsible background checks on nationals of these countries who wished to come here.

Yet, left-leaning judges indulged what I’ve called a “jurisprudence of Trump.” This is what passes for the theory that because Trump has an aggressively provocative and sometimes gratuitously hostile manner of expressing himself — even when arguing meritorious (or at least defensible) positions — his policy judgments must be scrutinized with a skepticism that would not attend the same policy judgments if announced by “normal” presidents.

Left-leaning judges indulged what I’ve called a ‘jurisprudence of Trump.’

Applying this theory, these activist courts rationalized that the president’s campaign rhetoric gave them license to ignore the valid, religion-neutral terms of his executive orders, instead imputing to them an anti-Muslim animus said to violate the First Amendment. Furthermore, because aliens outside the U.S. generally have no right to come to our country or to challenge their exclusion in our courts, the “progressive” judges dreamed up extravagant theories of standing in order to entertain their grievances. No, they claimed, they were not vindicating the “rights” of aliens; they were protecting the interests of Americans and states (particularly state universities) who were harmed by the aliens’ exclusion — personal harm from a temporary restriction that, according to these courts, outweighed the public interest in national security.

Accordingly, the courts issued temporary injunctions that prevented to travel restrictions from taking effect. A temporary injunction does not decide a case; it freezes things in place while the merits are litigated. In the Supreme Court, the Trump administration was challenging the injunctions, not seeking a ruling on the merits, while it continued to work toward more permanent restrictions. This peculiar procedural status gave the High Court an opportunity to resolve the injunction (with some tweaking) while dodging the ultimate issues — in particular, the discomfiting tension between religious liberty and national security that Islam creates.

The justices seized on that opportunity.

The Court’s ruling was ostensibly unanimous because all the justices agreed to let the travel restrictions go into effect. That was why the White House celebrated it. But it was a hollow victory. In reality, the Court was deeply divided, with a majority of the justices upholding the lower courts’ reasoning that the restrictions could be challenged on the aliens’ behalf by U.S. residents and state institutions.

Of course, as I contended at the time, that is precisely why the Court’s leftist bloc (Justices Ginsburg, Breyer, Sotomayor, and Kagan) went along with it. Although the majority did not go as far as some of the lower courts had gone in entertaining these vicarious claims, they presumed to announce their own test for determining which alien-American relationships were sufficiently “bona fide” to warrant standing. This exercise in judicial legislating prompted a dissent from the Court’s three reliable conservatives (Justices Thomas, Alito, and Gorsuch), who observed — presciently, as it turned out — that the majority’s test was as unworkable as it was inappropriate.

One could infer from the two opinions that a majority of the Court rejects the jurisprudence of Trump. By lifting the stay, as Justice Thomas’s dissent pointed out, the Court was signaling that the administration was likely to win on the merits. The justices, however, did not explicitly state that the lower courts were wrong. I believe that is because the liberal bloc is sympathetic to the lower courts’ anti-Trump sentiment. By sidestepping questions about the propriety of judicial inquiry into Trump’s state-of-mind, the Court managed to resolve the case without broadcasting its internal divisions on this point.

The ink on the Court’s June 26 ruling was not dry when new rounds of litigation commenced, testing the parameters of the majority’s ambiguous “bona fide relationship” test for standing to sue on behalf of aliens. Meantime, the administration continued to work toward final guidance.

The ink on the Court’s June 26 ruling was not dry when new rounds of litigation commenced.

I have contended for months that Trump’s travel restrictions have been counterproductive. The principal challenge our nation should be facing up to in visa, refugee, and overall immigration policy is the need to screen for radical Islam — more precisely, for sharia supremacism, which is better understood as a totalitarian political ideology with a religious veneer, not a religion per se. Our law already enables the government to exclude known jihadists — i.e., Muslims known to be involved in paramilitary terrorist training or acts of violence. The challenge is to exclude their ideological support system, including young people being reared in sharia supremacism — the recruitment pool for tomorrow’s jihadism.

Trump’s often over-the-top campaign rhetoric blurred the distinction between pro-American Muslims and anti-constitutional, anti-Western Islamic supremacism. Between that and the ham-handed way the initial travel-restriction order was implemented, the administration was instantly on the defensive, fighting off allegations of anti-Muslim prejudice from litigants, activist lawyers, and left-wing judges.

Inexorably, the administration defended itself by insisting that the travel restrictions had nothing to do with Islam. In addition, with shake-ups in administration personnel, the president’s present crop of top advisers is less inclined than his earlier strategists to engage the ideological challenge of sharia supremacism (evidently believing the nation is adequately protected if terrorists are identified and excluded). That made it increasingly unlikely that the administration would dare implement an enhanced screening system (what Trump called “extreme vetting”) aimed at barring entry by sharia supremacists. Instead, it would try to implement a system that could be defended as focused on security, not religion.

The new guidance reflects that turnabout. Remarkably, it drops any mention of Sudan, a Muslim-majority country, notwithstanding that its regime is one of only three the U.S. government lists as state sponsors of terrorism (the others are Iran and Syria). Iraq is also no longer among the countries whose nationals face a ban, even though the president finds that its dysfunctional government lacks identity-management protocols, good information-sharing practices, and other anti-terrorism protections. Iraqi visa seekers will “be subject to additional scrutiny” but not banned.

By contrast, besides the remaining five Muslim-majority countries originally targeted (Iran, Libya, Somalia, Syria, and Yemen), Trump has added two non-Muslim countries, North Korea and Venezuela, along with Chad, where Muslims make up just a shade over 50 percent of the population.

The administration has thus blunted any credible effort to denigrate the ban as anti-Islamic. To be sure, realpolitik, not security improvements, explains the dropping of Iraq and Sudan: Our government backs the Iraqi government and was heavily lobbied by Saudi Arabia and the U.A.E. to reward Sudan’s support in the war they are waging, with American help, against Iran-backed fighters in Yemen. Still, the removal of these Muslim-majority countries, increasing to near 90 percent the global Islamic population unaffected by the ban, illustrates that Trump is not targeting Islam.

The order does not affect aliens from the designated countries who already have permission to enter or lawful status in the U.S.

So, obviously, does the targeting of North Korea and Venezuela. Just as significant: The bans that have been imposed are highly qualified. Only two countries, North Korea and Syria, face a complete ban on all their nationals. By contrast, the ban on Venezuela is tightly tailored to apply only to government officials. As for the other five countries, the complete ban is imposed only on immigrants, who are harder to remove once they have permanent-resident status — even if a security problem has arisen. To the contrary, various categories of non-immigrants (i.e., aliens coming here temporarily for work, school, tourism, etc.) will still be welcomed. In fact, even Iranian student and exchange visitors are permitted entry. And even for the countries facing the most stringent restrictions, Trump’s order allows for waivers that, on a case-by-case basis, would allow their nationals to come to the United States anyway.

The order does not affect aliens from the designated countries who already have permission to enter or lawful status in the U.S. It also does not affect refugee seekers. For them, Trump’s earlier travel order remains in effect for a few more weeks, and the issuance of yet another new presidential directive is thus imminent.

In sum, Trump’s newly issued travel ban is carefully enough crafted that it will be very difficult to challenge on grounds of anti-Muslim bias. Consequently, the Supreme Court and the president may both get what they want: the former, avoidance of difficult, divisive issue; the latter, something he can claim as a win.

After all of the huffing and puffing about “extreme vetting,” though, Trump’s final order never mentions the word “Islam,” much less broaches the matter of “radical Islamic terrorism.” You may remember that as the thing he used to tell us the government had to confront explicitly and fearlessly if we were to protect national security. There will be no screening for sharia-supremacist ideology. Our agencies will try to keep jihadists out, not focus on their ideological sympathizers, and hope for the best. In other words, the theater over the “travel bans,” which will continue for a while longer, has been a waste of time.

    READ MORE:

    Trump vs. Supreme Court on the Travel Ban

    THE EDITORS: The Ninth Circuit it Wrong

    The Constitution Suffers During Travel Ban Battle

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