Trump's Travel Ban Is Headed to the Supreme Court

SCOTUS agrees to hear travel ban cases, will schedule oral arguments for October.

Fred Schilling, Collection of the Supreme Court of the United States

Today the U.S. Supreme Court agreed to hear consolidated oral arguments in the cases of Trump v. International Refugee Assistance Program (IRAP) and Trump v. Hawaii. At issue is whether President Donald Trump's controversial executive order banning travelers from six majority-Muslim countries violates the Establishment Clause of the First Amendment and/or exceeds the president's lawful powers under federal immigration law.

The Supreme Court says it will schedule oral arguments "during the first session of the October Term 2017."

These cases raise fundamental questions about the reach of executive power, the meaning of federal immigration law, the scope of the Establishment Clause, and about the role of the courts in policing the boundaries.

According to the Trump administration, not only did Congress give the president vast leeway to control what happens at the border, the executive branch is entitled to overwhelming judicial deference in all matters dealing with national security. According to the state of Hawaii and to the International Refugee Assistance Program, Congress did not authorize Trump's approach and Trump should get no deference from the courts because he is using government power to heap disfavor on Muslims.

Until now, the Trump administration has mostly lost on this matter in federal court. In May, the U.S. Court of Appeals for the 4th Circuit, in IRAP, issued an injunction blocking enforcement of the executive order on the grounds that the legal challengers were likely to prevail in their Establishment Clause challenge. Then in June, the U.S. Court of Appeals for the 9th Circuit, in Hawaii, issued an injunction blocking enforcement of the executive order on the grounds that Trump was exercising powers that federal law did not properly delegate to him.

But today the Supreme Court partially lifted those injunctions, allowing the executive order to go into effect in certain limited circumstances. Specifically, in an unsigned per curiam opinion, the Court lifted the injunctions "with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States." That is a small victory for the Trump administration.

However, the Court left the injunctions in place with respect to foreign nationals "who have a credible claim of a bona fide relationship with a person or entity in the United States." The Court explained, "a foreign national who wishes to enter the United States to live with or visit a family member…clearly has such a relationship…. So too would a worker who has accepted an offer of employment from an American company or a lecturer invited to address an American audience." That is a sizable loss for the Trump administration.

Notably, Justice Clarence Thomas, joined by Justice Samuel Alito and Justice Neil Gorsuch, wrote separately to argue that the injunctions should be lifted "in full." This suggests those three justices may be inclined to ultimately rule in favor of the Trump administration. After all, if they think they might rule against the executive order in October, why would they want to let the order go into full effect right now? It also raises the interesting possibility that Chief Justice John Roberts and Justice Anthony Kennedy may be more inclined to ultimately rule against Trump.

One thing is certain: This fall Donald Trump will face the first major test of his presidency before the U.S. Supreme Court.

Comments

[Bubba Jones]

Who decides if the claim is credible?

[Fist of Etiquette]

I hope the Supreme Court has to rule on each one individually.

[amishanarchist]

Read the dissent. It will create a lot of confusion.

[BearOdinson]

I never really thought the ban was worth much. Not only that, but the blanket ban on travel from the countries in question would have ended 90 days after the date of the EO. Then the Secy of Homeland Security would put together a list of countries in which more detailed information would be required for visas.

So had the ban been allowed to be instituted, it would be over now (in the absence of any extensions by Trump).

Not only that, but while it seems sort of a dumb measure, I still don't see how POTUS doesn't have this authority.

[Rhywun]

Any "ban" that doesn't include Saudi Arabia is just theater anyway.

[BearOdinson]

No argument there!

[Tom Dial]

Of the seven countries named in the original order, six do not have a functional government able and willing to assist in providing background information for visa evaluation, and the seventh (Iran) by some reports declined to provide such assistance.

Saudi Arabia, whether one likes it or not, and irrespective of the origin of many of the 9/11/2001 attackers, has a functional government capable of, and willing to, help US officials evaluate visa applications. A more interesting case would be Pakistan.

[marshaul]

Since you "don't see how POTUS doesn't have this authority", I'm hoping you can cite the Constitutional provision which explicitly enumerates this authority.

Since, of course, that's strictly how federal authority (as opposed to power) works.

[Cyto]

Scheduled for October...... In other words, this is over.

The whole point was to give space for a review. That space has already passed.

Nice job, disingenuous attornies general and partisan judges.

I don't see how this is so complicated. If Obama can blanket change citizenship and residency requirements for millions with the stroke of a pen, surely putting a few thousand visas on hold for three months should be within executive purview.

[Cyto]

Oh, I forgot the standard disclaimer..... Not that I support this policy, president or anything that goes with it.

There. All better.

[mtrueman]

"If Obama can blanket change citizenship and residency requirements for millions with the stroke of a pen, surely putting a few thousand visas on hold for three months should be within executive purview."

It's not so rare these days to see Libertarians arguing for greater presidential powers and increased bureaucracy.

[Mickey Rat]

Wrongheaded policy and unconstitutional are not synonyms.

[Scarecrow Repair & Chippering]

Who the hell said he agreed with Obama's policies? He's merely pointing out the hypocrisy.

[mtrueman]

"Who the hell said he agreed with Obama's policies?"

Not me. It's not important to me whether he agrees with O's policies or not. He said putting 1000s of visas on hold should be within executive purview. A rare show of disagreement with the Libertarian agenda of smaller government and deregulation. This has nothing to do with Obama or any other previous president.

[GeoffB1972]

Actually, as a libertarian, one of the few things I want a strong federal government to do is to limit the influx of people into our society to a rate at which they can be assimilated into American ideas of liberty.

[mtrueman]

When did Libertarians stop believing in the free movement of goods, people and ideas? And what business of yours is it whether a newcomer 'assimilates' or not?

[Zeb]

Notice the word "if" in there?

[mtrueman]

You're only making it worse.

[Unlabelable MJGreen]

This assumes the ingenuousness of the administration's motives.

[Ken Shultz]

"At issue is whether President Donald Trump's controversial executive order banning travelers from six majority-Muslim countries . . . "

Two points:

1) Aren't we talking about suspending such things pending improved vetting procedures?

Obama agreed to take in hundreds of refugees Australia is holding and has refused entry---because they've rioted and because they sexually assaulted children there so routinely, the Australians had to start sending families with children to another facility.

2) If Trump's revised EO is controversial, it's only controversial in the media.

Show me a poll that says average Americans don't think the President should be able to suspend travel from countries that present a terrorist threat--so long as he does so in accordance with the First and Fourteenth Amendments--and I'll find you a pollster that said Hillary Clinton had an 85% chance of winning on election night.

[Jerryskids]

1) Aren't we talking about suspending such things pending improved vetting procedures?

I don't know about "we" - I've been asking why the extreme vetting procedures can't be developed and put into place regardless of whether or not there's a travel ban. Are Syrian refugees creating that much of a disturbance that Trump can't even think straight, are they camped out in the Oval Office and stealing the pens so Trump can't even write a memo, are they holding hostages and issuing demands? What's the hold-up with the extreme vetting? And why isn't Hillary in jail yet?

[colorblindkid]

I'm pretty sure this whole thing rightfully falls under Scalia's "A lot of stuff that's stupid is not unconstitutional." approach.

Even Kagan has said the following:
I think that the question of whether it's a dumb law is different from whether the question of whether it's constitutional, and I think that courts would be wrong to strike down laws that they think are senseless just because they're senseless.

I wouldn't be surprised for a ruling in support of the travel ban that is higher than 5-4.

[marshaul]

Scalia is a piss-poor example of understanding of Constitutional authority. He clearly takes the view ? contrary to any genuinely "originalist" understanding ? that any action of the part of government is presumptively Constitutional unless it explicitly comes into conflict with an enumerated right.

In reality, the Constitution is supposed to enumerate the Federal powers (not the states' and citizens' rights).

cf. Scalia's Heller decision. He spends pages agonizing over the grammar of the second Amendment, and "cast[ing] doubt on longstanding prohibitions", which is entirely irrelevant, as the Bill of Rights itself reminds him that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

A properly-written Heller decision need have been no longer and nothing more than a repetition of the Constitution, followed by an observation that nowhere in all that was enumerated a Federal gun control authority on the part of any branch.

[WakaWaka]

An actual libertarian victory occurred today with the Trinity Lutheran ruling. That ruling has huge ramifications, including eliminating obstacles for voucher programs being used in religious institutions. Quit virtue-signaling about an executive order that was obviously going to be re-instated and focus on things that actually matter

[Unlabelable MJGreen]

And the world is ending in 5 minutes, so chop-chop, Damon!

[Jerryskids]

I'm pretty sure it was Obama who talked about priorities and how executive discretion allows for some wiggle room in the whole "faithful execution of the law" business - why can't Trump just take a page from Obama's playbook and decide that visa application processing from certain countries isn't a top priority? Maybe moving it down the to-do list to somewhere after "checking the mousetraps in the basement of the Library of Congress".

[BYODB]

According to the state of Hawaii and to the International Refugee Assistance Program, Congress did not authorize Trump's approach and Trump should get no deference from the courts because he is using government power to heap disfavor on Muslims.

Still waiting to hear how it's disfavoring Muslims when the vast, vast majority of the Muslim world is not on the travel ban list.

[Rhywun]

Penumbras and emanations coming out of Trump's head.

[BYODB]

The irony is that if you consider their arguments at their face value, they are essentially saying that the most violent and terrorist-riddled countries are actually the entire Muslim world. It's a pretty lolzy and shitty argument that I fully expected to be shot down only to be replaced by some cover excuse that they use to say the ban is unconstitutional.

Essentially the entire American judicial system is a joke at this point. Or it would be, if they couldn't murder you.

[Tionico]

more correctly, out of what passes for "heads" amongst those opposing the bans as written. THEY are the ones with the wild imaginations.

That law passed back about 1965, by CONGRESS, no less, clearly grants POTUS all authority to deal with entry into the United States by other than citizens (who cannot be kept out except in extreme cases). So what part of "congress, persuant to the Constitution, enacted a law granting the president precisely the authority Trump exercised in these EO's.

[Mark22]

Notably, Justice Clarence Thomas, joined by Justice Samuel Alito and Justice Neil Gorsuch, wrote separately to argue that the injunctions should be lifted "in full." This suggests those three justices may be inclined to ultimately rule in favor of [the rule of law, the US Constitution, and the interests of the American people.]

FTFY

[Uncle Jay]

RE: Trump's Travel Ban Is Headed to the Supreme Court
SCOTUS agrees to hear travel ban cases, will schedule oral arguments for October.

If Trump the Grump bans me and other people from going where we want, what other bans is going to implement?

[Tionico]

If you're a bona fied citizen of the US, unless you have committed any of a small number of clearly defined crimes, you cannot be kept out of the USA. So his travel ban does NOT prohibit you from going where you want to go. Go back and READ the texts of those bans...... you do not understand them

[Jeep's Blues]

"However, the Court left the injunctions in place with respect to foreign nationals "who have a credible claim of a bona fide relationship with a person or entity in the United States." The Court explained, "a foreign national who wishes to enter the United States to live with or visit a family member...clearly has such a relationship.... So too would a worker who has accepted an offer of employment from an American company or a lecturer invited to address an American audience." That is a sizable loss for the Trump administration."

I don't understand this characterization as a "sizable loss".

[widget]

I am under the crazy impression the United States territory and its government belong to its citizens; citizens who even have the right to dissolve the government and form a new one. The rights defined in the US Constitution are contractual and only apply to US citizens.

So, if the USG decides to prohibit your grandma from Luxembourg entering US territory, your rights have not been violated. Whether or not that's a good policy is another matter, but not one that seems to be within the court's scope of work without a stretch.

"who have a credible claim of a bona fide relationship with a person or entity in the United States."

We are all distant cousins, so that means about nothing.

[Zeb]

The rights defined in the US Constitution are contractual and only apply to US citizens.

That's not true. Or do you think that any foreign visitors should be subject to searches at the whim of police, cruel and unusual punishments and enslavement?

if the USG decides to prohibit your grandma from Luxembourg entering US territory, your rights have not been violated

I'm not sure that's true either if we are talking natural rights. I will agree that it is not a right protected by the constitution which does grant to the federal government pretty broad powers on immigration.

[widget]

That's not true. Or do you think that any foreign visitors should be subject to searches at the whim of police, cruel and unusual punishments and enslavement?

No. I think it's a very good idea to extend at least some our rights to foreign visitors. But this by treaty and good sense, it is not required though.

BTW, we all subject to searches upon entry or re-entry into the US. You've actually returned to the US from an international flight?

[Zeb]

Well, I think you are very, very, very wrong about the rights of non-citizens, and in a dangerous and severely fucked up way. The whole idea behind the rights guaranteed in the bill of rights is that they are rights that all human beings have that the government must not infringe on. Are you seriously saying that you think it would be perfectly constitutionally fine if the law allowed arbitrary raids on or arrests of any non-citizen residing in the US? I've honestly never heard anyone claim that before.

As for searches incident to border crossings, that applies to citizens as well as non-citizens, so I don't see how that supports your point at all. That citizens lack certain rights at the border doesn't tell us anything about what rights non-citizens have after crossing the border.

[GeoffB1972]

The rights the Declaration enumerates and the Constitution guarantees are universal. But the U.S. government was instituted to secure said rights for We the People, not the whole world.

[Zeb]

I'm talking about inside the US, not suggesting that the US should protect foreigners rights outside of US borders.

[Unlabelable MJGreen]

I'm so blessed the government has given me these rights.

[BYODB]

Try and exercise those rights in North Korea. I dare you.

I'm not disagreeing with you, I'm just saying that while those rights don't come from the Government they do need to be allowed by the government to function.

There is a relationship there. Primarily, the relationship consists of the government limiting those rights when they're in opposition to one another but 200+ years of case law and idiots have pretty well ruined that.

[Zeb]

But widget seems to be claiming that the US government has no obligation to respect the rights of foreigners within the US.

[widget]

No contractual obligation. Correct. I think it's good idea to afford some rights to foreign visitors though.

[BYODB]

You unfortunately misunderstand the entire notion of Natural Rights, where they come from, and what relationship they have to government.

That's truly unfortunate, but considering that theoretically these rights originate with God it's really little wonder that a secular society would fail at understanding them.

No one talks about that, but it's written so thoroughly into the concept that you have to strain the imagination to make them into something else, which is what most modern thinkers have done. It's frankly a disserve to the theory not to mention it, but no one around here seems interested in doing so.

I would say I don't know which is worse, but I do. The not understanding them at all part.

[widget]

You unfortunately misunderstand the entire notion of Natural Rights

The people of the US hired a government that would protect their own Natural Rights, not everyone's. It costs money to do that. Do you think the USG's obligation to protect Natural Rights spans the globe?
Who is going to pay for that? What if not every country agrees with this concept of Natural Rights.

You sound like fucking John McCain.

[BYODB]

And you sound like you're incapable of making an argument that isn't a strawman, but that's just as much beside the point that you don't understand Natural Rights and their relationship to any form of government at all.

It doesn't cost a lot of money, generally speaking, to support natural rights; it costs a shit ton of money to infringe on them you ignominious twat.

[Zeb]

Who said anything about the US government protecting rights around the world? We are talking about within US territory here. In case there is any confusion here, I am not saying that the US should be protecting people's fourth amendment rights in other countries. Only that the 4th amendment applies to foreigners who are in the US.

[widget]

It's the other way around. The people the US have agreed to form a government with specific limitations on its power over them. Immigration and entry of foreigners into the US is not one of those limitations, for better or worse.

[Zeb]

The people the US have agreed to form a government with specific limitations on its power over them.

Specific limitations, period, not just over citizens. Immigration is one area where the federal government has pretty broad constitutional powers. But you seem to be claiming that even outside of immigration matters, non-citizens have no constitutional rights whatsoever. Which is quite extraordinary.

[BYODB]

Indeed. He is what is traditionally referred to as a 'slaver' around these parts if I'm not mistaken.

Widget represents the emerging national socialism of the United States, I'm afraid.

[widget]

But you seem to be claiming that even outside of immigration matters, non-citizens have no constitutional rights whatsoever.

Yes, and yes.

[John Lloyd Scharf]

Let's hope ISIS does not complete another 9/11 before the SCOTUS makes a ruling.

[nogard]

To those on the left. For just one minute, forget your mindless opposition to Trump and consider that the law and Constitution very clearly and unambiguously gives ANY president the power to decide that any group or category of people may be considered a danger and threat to the country and it's citizens, and that that president is given the power to ban such people from entering the country. It is not only within his power but is his responsibility to do so as he sees fit. The truth is that the supreme Court will not be deciding on whether or not Trump's ban is constitutional since the president is clearly given that power, but whether they have the honesty and integrity to rule on the law and not upon their own political and personal whims, beliefs or personal opposition to this president. Any judge voting against this ban should rightly be impeached by the congress and removed from the bench for gross misconduct and dereliction of duty.

[loveconstitution1789]

I wonder if the media is going to cover that the Supreme Court barely works during July, August, and September plus they take weekends off. Associate justices make $251,800 per year too.

[swampwiz]

While I can see that the POTUS has the right to stop entry to the USA at any time, there still must be a compelling reason why an alien that was considered to be cleared to get the visa in the first place is now not considered so - and this part about some aliens being "more equal" than others is BS. Now don't get me wrong, the POTUS can shut down the visa process at any time short of Congress compelling him not to; what we're talking about is the USA upholding its end of the deal made to these folks that were given a visa.

[LifeStrategies]

This is not "a sizable loss for the Trump administration." It's a sizable WIN for Trump, since it's only restricted by common sense for people who are very unlikely to be terrorists.

Damon Root, your unfortunately ignorant anti-Trump bias is loud and clear. You seem to disagree that the President is tasked with keeping America safe from radical Islamic terrorists. This suggests you sympathize if not wholly support their anti-freedom agenda, so how come you're even writing in Reason?