Jurisprudence

Trump’s Going to Win

Why the Supreme Court will probably uphold the president’s travel ban.

Protesters hold up signs like, "Nation of Immigrants."
Protesters gather in Battery Park and march to the offices of Customs and Border Protection in Manhattan to protest Trump’s first iteration of the Muslim ban on Jan. 29, 2017.
Bryan R. Smith/AFP/Getty Images

On Wednesday, the Supreme Court will, at long last, hear arguments on the legality of President Donald Trump’s travel ban. In its current iteration, the executive order prohibits almost 150 million people, almost all of them Muslim, from entering the United States on the basis of their nationalities. Opponents of the ban argue it exceeds the president’s authority under immigration law and violates the Constitution’s bar on religious discrimination. Lower courts have repeatedly blocked the order and its predecessors, though the Supreme Court has indicated it may well uphold the current version in its entirety. No matter how the justices rule, their decision in Trump v. Hawaii will have sweeping consequences for presidential power, judicial review, and constitutional equality.

This week’s showdown at the Supreme Court has been inevitable since the president issued his first travel ban on Jan. 27, 2017, a week after he took office. That executive order suspended refugee resettlement and temporarily prohibited citizens of seven Muslim-majority countries—Iran, Iraq, Libya, Syria, Somalia, Sudan, and Yemen—from entering the United States. The hastily crafted, poorly drafted order took effect immediately, and federal agents promptly canceled tens of thousands of visas and even took aim at green card holders, though the administration later attempted to exempt them.

The ban spawned chaos across the country and the world. Customs and Border Protection agents detained, deported, and abused immigrants at airports, many of whom were midflight to the U.S. when the ban came down. Multiple federal courts swiftly began freezing parts of the ban, though a report issued by the inspector general of the Department of Homeland Security later found that CBP agents violated court orders in their zeal to enforce it.

On Feb. 3, 2017, a federal judge blocked the whole order, and an appeals court affirmed its decision. The administration then issued a new, very similar travel ban, which the lower courts froze before it could take effect. In June, the Supreme Court allowed the government to implement this order but exempted individuals who had a “bona fide relationship with a person or entity” in the U.S.

In September, the government issued its third iteration of the ban, which permanently excluded citizens of Chad, Libya, Iran, Somalia, Syria, Yemen, and North Korea, as well as government officials from Venezuela. (Chad was included for an astoundingly silly reason—it ran out of passport paper—and was dropped from the list in April.) Predictably, the lower courts froze this third ban. But in December, by a 7–2 vote, SCOTUS let the order fully take effect while its challengers fought against it in court. That means citizens from those countries cannot currently enter the U.S. unless they obtain waivers, which are essentially impossible to acquire. Even those with close personal ties to the U.S. cannot get in.  

Trump’s various efforts to prevent millions of immigrants from entering the country have run afoul of the law in a multitude of ways. The January 2017 order was particularly troubling because it took effect without warning and seemed to ensnare lawful permanent residents. The 9th U.S. Circuit Court of Appeals relied upon this flaw to block the policy, explaining that the lack of “notice and a hearing” for those affected infringed upon due process.

Trump’s subsequent travel ban remedied its predecessor’s most glaring due process defects, as the White House delayed its implementation to avoid a repeat of airport detentions and deportations. This time around, the ban’s opponents raised two key arguments. First, they argued that Trump’s order exceeded his authority under the Immigration and Nationality Act. That law allows the president to exclude a “class of aliens,” but only after finding that their admission would be “detrimental to the interests of the United States.” It also declares that “no person shall … be discriminated against in the issuance of an immigrant visa because of … nationality.” The plaintiffs argued that Trump failed to find that citizens of the blacklisted countries would harm the U.S. and that his ban openly denies them visas on the basis of their nationality.

Second, the plaintiffs claimed that the new travel ban ran afoul of the First Amendment’s Establishment Clause. The Supreme Court has held that “the clearest command” of this clause “is that one religious denomination cannot be officially preferred over another,” requiring government neutrality with regard to religion. Opponents of the ban argue that it impermissibly disfavors one religion, Islam. To support this claim, the plaintiffs cite Trump’s promise throughout his presidential campaign to implement a “Muslim ban.” They also point to his comments in office, promulgated mostly through Twitter, disparaging Islam and complaining that the ban isn’t discriminatory enough. These words and actions, they assert, taint the order with anti-Muslim animus.

The second travel ban was litigated in two federal appeals courts: the 9th Circuit and the 4th Circuit. In May, the 4th Circuit blocked the ban on constitutional grounds, ruling that it “drips with religious intolerance, animus, and discrimination.” The next month, the 9th Circuit blocked the same ban on statutory grounds, holding that Trump had “exceeded the scope of the authority delegated to him by Congress” through the INA.

In September, the administration issued its third stab at the order, and both federal appeals courts again weighed in. This time, the 4th Circuit froze it as an Establishment Clause violation, while the 9th Circuit struck it as a transgression of the INA. Now the Supreme Court will weigh in to decide whether the order, in its current form, passes legal muster. It will also consider whether district court judges’ injunctions, which proscribed the government from implementing the various bans anywhere, were too broad.

While opponents of the travel ban have enjoyed a lengthy winning streak in the lower courts, the smart money has the Supreme Court upholding most or all of the current order.

There are several reasons to doubt that a majority of the justices are willing to invalidate Trump’s policy. First, a head count yields bleak results for the plaintiffs. When the Supreme Court allowed the second ban to take effect only in part last June, three justices dissented: Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch. In his dissent, Thomas asserted that the government’s “compelling need to provide for the Nation’s security” justified implementing the ban. Those three justices dissented again when the court swatted down the government’s effort to narrow the scope of the ban’s exemptions.

These two decisions suggested Chief Justice John Roberts and Justice Anthony Kennedy had brokered a compromise with the liberal wing, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. But this compromise appeared to fall apart after Trump issued his third travel ban. When the court let that order take effect, only Ginsburg and Sotomayor dissented. Whatever agreement the justices had reached over the second travel ban seemed to have collapsed.

There’s a second reason to doubt a majority of the court will strike down Trump’s order: His administration may have dressed it up in sufficient pretext to persuade at least Roberts and Kennedy that it complies with the law.

As Elie Mystal has explained, the third ban presents itself as an evenhanded, carefully devised executive policy instead of a dashed-off memo that emerged from the fever swamps of Stephen Miller’s mind. Executive order No. 3 was purportedly reviewed by multiple federal agencies, which determined, in tandem with Trump, that the individuals affected may be “detrimental to the interests of the United States.” It adds Venezuela and North Korea—which do not have Muslim majorities—to the list of banned countries, even though neither addition has any practical effect. And it allegedly allows countries to get off the list by complying with U.S. standards. Those changes, combined with the ostensible deliberation process, may undermine the plaintiffs’ statutory and constitutional objections.

Finally, there is a small but real chance that the Supreme Court could conclude that the travel ban isn’t subject to meaningful judicial scrutiny. From the start, Trump’s Department of Justice has argued that the courts have exceeded their authority by closely examining the bans’ purpose and effect. It claims the president’s broad constitutional authority in matters of national security precludes the judiciary from questioning, let alone invalidating, the executive branch’s exclusion of certain immigrants. That argument might be too radical for Roberts and Kennedy, but it’s on the table, and the troika of far-right conservative justices may push for it.

If the Supreme Court strikes down Travel Ban 3.0 on statutory grounds, the ruling’s immediate effect will be to bolster the separation of powers. After all, it’s Congress, not the president, that holds plenary power over immigration law; the president is only tasked with enforcing it. If SCOTUS reads the INA narrowly and finds it does not permit Trump to exclude 150 million immigrants on the basis of rather suspect classifications, it will enforce Congress’ authority to make policy in this field.

On the other hand, if the Supreme Court rules that Travel Ban 3.0 violates the Establishment Clause, it will deliver a stinging rebuke to the president and his defenders. The justices can’t reach this conclusion without finding that Trump tainted the policy with anti-Muslim animus. Never before has the court accused a sitting president of malign discriminatory intent. Such a ruling would dramatically strengthen the First Amendment’s guarantee of religious neutrality, preventing government officials—from the president on down—from disfavoring religions under the pretense of impartial lawmaking.

And if the court upholds the ban? No matter its reasoning, its decision would be devastating for the millions of people, mostly Muslims, who are now indefinitely barred from entering the U.S. It would also indicate that a majority of the court is too credulous to see Trump’s bigoted motivation for the ban, or too timid to acknowledge it. And it would empower Trump to continue revising immigration law via executive order without serious fear of judicial intervention. In short, a Supreme Court decision in favor of Trump would telegraph to the world that our highest court is unwilling to protect the constitutional command of religious equality when millions of Muslims have nowhere else to turn.

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