Nothing the Supreme Court has done since it first looked at President Trump’s first travel ban this summer ought to give earnest challengers of the current ban any new optimism that version 3.0 ultimately will be banned, in any material way, by the justices.
Monday’s brief orders, allowing the ban to go into full effect pending the resolution of two cases out of Maryland and Hawaii, only reinforce the likelihood that those hoping for strong judicial pushback against executive authority are likely to be disappointed when Chief Justice John Roberts and company reach their final ruling on the merits of the cases.
It's possible, even likely, that the lower federal appeals courts now reviewing the ban will continue to strike down portions of it, citing evidence that is embarrassing, or worse, to the administration.
These arguments will be hashed out this week in two oral arguments on each coast. On Wednesday, in the case out of Hawaii, the 9th U.S. Circuit Court of Appeals will evaluate the ban and then, on Friday, in the case out of Maryland, the 4th U.S. Circuit Court of Appeals also will hear from attorneys on all sides of the fight.
It will be crucial for those challenging the ban to evoke during these arguments just how weak are the factual justifications for the current ban. There are still portions of the current version of the ban that are largely inexplicable except as unconstitutional manifestations of the racial or religious discrimination that is at the heart of so many of this administration’s policies. (Trump yet again undermined his own administration’s legal position in the travel ban case when he retweeted racist, anti-Muslim videos last week).
The only way the challengers now can win at the Supreme Court, it seems to me, is if the “record” below is still so devoid of sensible government justifications that the justices are forced to conclude that discrimination is still the overarching goal here. A tough sell but not an impossible one.
The timing of those hearings is what prompted the Supreme Court to chime in Monday with two simple, clear messages. To the Trump administration, the justices said: Go ahead and enforce the current ban, in full. It now has a presumption of legality the challengers will have to overcome, again, if and when they make it to our court. And to the judges on the 9th and 4th Circuit, the justices said: Go ahead and finish your work quickly, and give us your written decisions soon, so we can resolve this case on the merits as soon as possible. Neither of those messages can sound reassuring to the good folks who are challenging the ban on first amendment or any other legal grounds.
But both messages from the Court must sound like victory to those Trump officials who have reshaped the travel ban twice now since the first version of it was rolled out, to such chaos, cruelty, and heartbreak, in January. For them the political calculation over the past nine months surely has tracked the legal one; the less expansive the ban has become, the more bureaucratic vetting it has embraced, the more deferential the courts have been in evaluating it. And that dynamic between the judicial and executive branches is not new or exclusive to the machinations of the Trump administration.
All of this means that we are likely before the end of next June to see a ruling from the Court — a 5-4 ruling or perhaps even a 6-3 one — that endorses the current ban as a constitutional, if imperfect, expression of the president’s vast authority to implement refugee policy. Sure, the Court will add some language in the majority opinion that expresses dismay at the way the travel bans came about. Yes, there will likely be a reference or two to the anti-Muslim animus so prevalent among the president and his men. But in the end we’ll see a cautious ruling that tells us that the Constitution, and federal statutes, give Trump the authority to do what he’s done in the name of national security, if nothing else.
We will never know whether or to what extent the Court would have endorsed the first travel ban, the patently unconstitutional one, the one that helped shaped the narrative we have today of an administration run by amateur attorneys and hack bureaucrats. My guess is that Justice Anthony Kennedy, at a minimum among the Court’s conservatives, would have balked at such a nakedly discriminatory ban, one so utterly lacking in the sort of factual justifications the administration has since ginned up to defend the current ban.
But that ban is not this ban. That’s good news for the countless people who were subject to the first ban but not to the current one. It’s good news for Trump officials who no doubt will spin the coming Supreme Court decision as more of a vindication than it will actually be. But it’s bad news, terrible news, for all the people, all the innocent men, women, and children the Trump administration still wants to leave behind because of where they were born, or the color of their skin, or the God to which they pray.