The travel ban at the Supreme Court

June 28, 2017

Trump cares a lot about winning, or at least the appearance of it.

So he was predictably quick to sound off in triumph after the Supreme Court announced on Monday morning that in October it would consider the legality of his revised travel ban and will allow the ban to take partial effect in the meantime.

he justices’ decision, he said, was “a clear victory for our national security.”

In reality, “victory” for anyone in this case is far from clear.

Trump, who had called during the campaign for “a total and complete shutdown of Muslims entering the United States,” issued his first travel ban in January, but it was quickly blocked by the courts.

A revised version, issued in March, barred visitors from six Muslim-majority countries from entering the United States for 90 days and suspended the refugee program for 120 days. Key parts of it were again struck down by two federal appeals courts. One of the two courts, the United States Court of Appeals for the Fourth Circuit, recalled Trump’s own incendiary campaign statements in ruling that the order violated the First Amendment’s ban on government establishment of religion and that it “drips with religious intolerance, animus and discrimination.”

On Monday, the justices agreed to review both appellate decisions, but their unsigned opinion did not address the merits of those cases. They ruled that until they hear the case in early fall, the ban will apply only to foreigners with no connections to America and not to those “who have a credible claim of a bona fide relationship” here.

Bona fide
What’s a “bona fide” relationship? It’s a good question, and one that will be litigated aggressively over the summer. The court provided general guidelines — say, a family member of someone living in the country, a student admitted to a university or a worker with an employment offer in hand. Relationships that exist only to get around the ban are not acceptable — for example, between refugees and the immigrant-rights groups that reach out to them as potential clients.

That approach did not satisfy Justices Clarence Thomas, Samuel Alito and Neil Gorsuch, who argued in partial dissent that the “bona fide” standard was “unworkable” and will result in a “flood of litigation” in the lower federal courts. The dissenters would have allowed the ban to take effect in its entirety.

All the legal jockeying shouldn’t obscure the fundamental foolishness of the policy itself. Despite Trump’s groundless claim that the ban is necessary to protect national security, no one from the affected countries has been responsible for a fatal terror attack in the United States in the past two decades. This includes the past five months, during which the White House has repeatedly insisted on the ban’s importance even as it has shown little urgency in filing its appeals.

Now the administration has the summer to conduct its vetting review, which was the original rationale for the travel ban — the government needed time to “figure out what is going on,” as Trump once put it. By October, the ban will have expired and the review should be complete. And by then Trump might conceivably have developed a factual basis for a policy that continues to bar people from certain countries, which would trigger a whole new round of litigation.

(Source: The NYT)
 

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