The Supreme Court can still make the travel ban happen. But it might have to act fast.
The Ninth Circuit Court of Appeals upheld a Hawaii judge’s ruling barring Donald Trump’s travel ban — which would prevent all entries from six majority-Muslim countries for 90 days, and nearly all refugee admissions for 120 days — from going into effect on Monday.
The Supreme Court is now the last hope for the controversial executive order that sparked mass protests at airports around the country.
“Immigration, even for the President, is not a one-person show,” the court wrote in a per curiam opinion. “The President’s authority is subject to certain statutory and constitutional restraints. We conclude that the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress.”
The Ninth Circuit’s ruling says the government should be allowed to resume its review of visa procedures — which is intended to lead to new “extreme vetting” tests for people seeking to enter the US — which the Trump administration had argued it hadn’t been able to do thanks to a lower-court order. But the parts of Trump’s executive order that prevent people from entering the US remain on hold.
The Fourth Circuit Court of Appeals in Maryland also upheld a (narrower) ruling against the ban in May, and the Trump administration’s already appealed that ruling to the Supreme Court — in addition to asking it to stop both the East Coast and West Coast rulings from affecting policy while the Supreme Court considers the case, so that the ban could go into effect over the summer.
Now, though, the Ninth Circuit’s piled on yet another stinging defeat for the Trump administration. If the Supreme Court does what the administration wants and allows the travel ban to go into effect, it’ll be flying in the face of every ruling issued on the executive order so far.
The more the administration loses, the harder Trump makes it for them to win
The Ninth Circuit’s ruling doesn’t change the bottom line: The Supreme Court is the only thing that can save Trump’s travel ban now.
The ruling certainly doesn’t make it any easier for the administration. But the Supreme Court’s more conservative than either the Ninth or Fourth Circuits, there’s definitely a chance that the Supremes will overrule every judge who’s looked at the executive order so far and side with the administration.
But the courts, at this point, are no bigger a problem for the Department of Justice than the president himself. Every ruling against the administration on the travel ban sparks a potential temper tantrum from the president on Twitter; every temper tantrum provides more fodder for the travel ban’s opponents.
The Ninth Circuit offered its own proof of this; in a footnote, it cited Trump’s June 5 tweets criticizing the DOJ for revising the original executive order (issued in January) to make it more “politically correct” — effectively undermining the DOJ’s argument that the March executive order was the result of a thoughtful review of national-security policy.
— Rebecca Berg (@rebeccagberg) June 12, 2017
In theory (though President Trump appears to see it differently) the purpose of the 90-day country-based ban, and the 120-day refugee ban, was to allow the government time to come up with a list of countries that weren’t providing the US with enough information, and ban entries from those countries indefinitely.
The Hawaii ruling put that whole process on hold. But the Ninth Circuit says the Hawaii decision improperly stopped “inter-agency review” and overturned that part of the Hawaii ruling. (It didn’t officially allow the process to start up again, but that ruling should be forthcoming.)
This doesn’t change anything on the ground. The most controversial parts of the executive order Trump signed on March 6 have been put on hold since March 15, when a Hawaii judge issued an injunction against them. The Ninth Circuit is just upholding that objection.
But it makes the question not just of whether the Supreme Court will take up the travel ban cases, but when, all the more relevant.
The Supreme Court has many ways to kill the ban — and it would have to act soon to save it
If it wants to, the Supreme Court can kill it without even taking up the case. It has the option of simply declining to hear the government’s appeals. For another, the Ninth Circuit has made a different legal argument against the ban than the Fourth Circuit did — so far, courts have ruled that the travel ban is unconstitutional because it discriminates against Muslims, while the Ninth Circuit argues that the ban violates the Immigration and Nationality Act by overstepping the president’s authority to suspend immigration into the US.
The biggest problem the administration is facing, though, might be the calendar.
The text of the executive order said that the ban would be in place for 90 days after the effective date of the order — and that the order would be effective on March 16. It didn’t make any exception for what would happen if courts put the ban on hold.
So theoretically, the 90-day, country-based is expiring on Wednesday, June 14. And theoretically, even if the Supreme Court overturned both the Fourth and Ninth Circuits and sided with the government, it wouldn’t be able to implement it. (It would be able to implement the remainder of the 120-day refugee ban.)
In practice, if the Supreme Court decided to allow the travel ban to go into effect, it might try to interpret the phrase “effective date” to mean whichever day the ban was allowed to start.
But if the Supreme Court grants the administration’s request to hear the case, it won’t do so before its next term in the fall. So unless the Court acquiesces to the administration’s request to allow the ban to go into effect now and ask questions later, the process that the government was supposed to be doing while the ban was in place — which it can now restart under the Ninth Circuit’s decision — will have had more than 90 days to unfold. That raises the question of why the government would still need a ban on the six majority-Muslim countries at all, rather than going forward with its semi-permanent blacklist.
Those aren’t questions the Department of Justice is likely to want to answer. To avoid them, it will need the Supreme Court to step in ASAP and allow the travel ban to happen over the summer — overruling literally every court that’s considered the ban to date.
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