The most important ruling of this Supreme Court term—by far—is likely to be the court’s decision in the travel ban case. The common assumption has been that the challenge to President Trump’s order barring entry into the United States for nationals from six countries will be the headline event next term. But that is very likely wrong: The court will most likely rule definitively on Trump’s action right now—by Monday or Tuesday morning at the latest.
The appellate courts that have heard the challenges have held the president’s order to be invalid, the 9th U.S. Circuit Court of Appeals on statutory grounds and the 4th Circuit on constitutional grounds. Both courts upheld temporary injunctions against the enforcement of the visa ban, so it is not in effect at the moment. The government has asked the Supreme Court to grant review of the cases (with argument set for next October, when the court returns) and to issue a stay of the lower court injunctions against Trump’s ban.
The ban on entry from the six countries is set by the president’s order to last for 90 days. The stated purpose of the ban is to provide time for the president’s national security team to engage in an internal review of visa procedures from those six countries. The 9th Circuit has now held, however, that the internal review may proceed. Thus the internal review will be completed before the court returns next fall.
What matters is what happens this summer, and that is what the court will announce in the next few days. The choices are (1) the Supreme Court can deny the government’s request and keep the temporary injunctions against the travel ban in place while the government does its internal review or (2) the Supreme Court can grant the government’s request and allow the Trump travel ban to go into effect (with potential chaos at airports all summer long) while that internal review is conducted. Again, whatever the court decides, the internal review will be finished by fall and the rationale for the existing travel ban (or travel “pause” as the administration likes to call it) will be extinguished.
One caveat: The government suggested at one point that it would want to have a 90-day travel ban go into effect even after the internal review of visa procedures is complete. This argument, though, would keep the case alive while destroying the government’s original defense of the ban. Once decoupled from the period for internal review, a “free-floating” 90-day travel ban has lost its only articulated and even possibly legitimate rationale. (An extraordinary and indispensable set of writings on the case by professor Leah Litman of University of California–Irvine School of Law, Marty Lederman of Georgetown Law, and others can be found at this Take Care link. They merit reading in full.)
Make no mistake: The travel ban cases are of immense importance even if the period that’s actually in question is essentially this summer. This is a signal moment for determining the scope of presidential powers over national security and the deference that should be accorded the president by the judiciary. When the first travel ban was announced, I thought that any judicial challenge would be difficult to sustain. Having served as an executive branch lawyer, my instinct was to believe that the complexities of national security render suspect any second-guessing of presidential determinations in this area.
The Trump administration, however, has made an unholy mess of the president’s authority over national security. Its irresponsible and preposterously pretextual arguments for deference to these travel bans threaten to weaken the national security authority of all future presidents.
In thinking that the travel bans would present difficult cases for the courts, I assumed that there would of course be some reasoned executive branch process leading to a national security determination by the president. But when the first travel ban—adopted on the president’s seventh day in office—was subject to judicial review, it turns out the government was buck naked. The government’s lawyers had nothing. Nothing. It was an embarrassment for anyone who has served in administrations of either party to see there was nothing to counter the notion that this ban was in fact drafted by a couple of White House staffers with no national security experience and after no serious consultation with career officials at any of the relevant defense and national security departments. The second travel ban came with only a fig leaf of a simplistic and conclusory letter from the attorney general and the secretary of homeland security, a letter so thin the Department of Justice barely mentions it in its filings.
What does it do for presidential credibility, now and in the future, if a solemn declaration of urgent national security necessity turns out to have been the work of two staffers named Steve?
The sooner this ill-considered, pretextual travel ban is gone from the national stage, the better it will be for national security and legitimate presidential authority. Early next week, the Supreme Court should go with Option 1 and simply say, “The petitions for a writ of certiorari are denied.”