The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Earlier today, the Supreme Court issued two orders stopping implementation of lower court injunctions that had temporarily blocked implementation of President Donald Trump's third travel ban order, which permanently bans entry into the United States by most citizens of six Muslim-majority nations, as well as imposing mostly insignificant restrictions on citizens of North Korea and Venezuela. These orders do not resolve the legal challenges to Trump's latest travel ban. But they do allow it to go into effect, at least until the lower courts reach final decisions on its legality.
Earlier, two federal trial courts had issued temporary injunctions blocking implementation of large parts of the order, one because it exceeds the authority granted to the president by Congress, and another because the order was an unconstitutional effort to discriminate against Muslims. Today's orders lift those injunctions.
It is the first time any federal court has allowed any of Trump's three travel bans to go into effect. Back in June, the Supreme Court issued a mixed decision that partially lifted, but also partly maintained lower court injunctions against the second iteration of Trump's travel ban order. Today's rulings are more favorable to the administration. They are probably the administration's biggest successes, throughout the entire history of the travel ban litigation.
Commentators such as Ariane de Vogue of CNN and David French of National Review suggest this could indicate that the justices are likely to uphold Travel Ban 3.0 when and if the issue gets to the Supreme Court. They certainly could be right. But the long-term significance of today's ruling is far from clear.
The two almost identically worded orders contain virtually no legal analysis. So it is hard to say what motivated the seven justices in the majority (Ruth Bader Ginsburg and Sonia Sotomayor dissented).
In order to secure a preliminary injunction, the plaintiffs challenging the travel ban had to show a "likelihood of success on the merits" of the case. It could be that the majority justices lifted the injunctions because they think that the arguments against Travel Ban 3.0 are without merit. But a preliminary injunction also requires proof that the plaintiff is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities weighs in the plaintiff's favor, and that a preliminary injunction is in the public interest. Thus, it's entirely possible that the justices who supported today's orders simply believed that the plaintiffs failed to meet one or more of these other criteria, without necessarily concluding that their claims lacked merit.
A particularly likely candidate is the "irreparable harm" requirement. It is striking that today's orders note that "In light of its decision to consider the case on an expedited basis, we expect that the Court of Appeals will render its decision with appropriate dispatch." This is a reference to the decisions of the US Courts of Appeal for the Fourth Circuit and Ninth Circuit to consider the two trial court rulings on an expedited basis. Given this accelerated schedule, it could be that the seven Supreme Court justices who voted for today's orders believe that the two cases will be decided so quickly that not enough time will have passed for the plaintiffs to suffer any irreparable harm in the meantime.
It could also be that the seven justices disagree among themselves about the reasons for lifting the preliminary injunctions. At the very least, I am skeptical that liberal Justices Stephen Breyer and Elena Kagan really believe that the case against Travel Ban 3.0 is utterly without merit. Yet they were among the seven who voted for today's orders. The Court's failure to present any legal analysis justifying its rulings may represent an attempt to paper over disagreements within the majority.
In my view, Travel Ban 3.0 has most of the same grave legal defects as its two predecessors, and may even be worse in some respects. It would be disappointing if the Supreme Court upheld it. But I cannot deny the possibility that some justices will see meaningful distinctions between 3.0 and its predecessors that could help the administration.
I also believe that today's orders are misguided. As I see it, the two trial court rulings make a strong case that at least some of the plaintiffs meet all four requirements for a preliminary injunction. But the jurisprudence of preliminary injunctions is very far from an exact science, and there is a great deal of room for judicial discretion.
The Fourth and Ninth Circuits will soon hear the administration's appeals of the trial court rulings against the travel ban. If, as seems likely, one or more of the appellate courts also rules against Trump, the issue may soon return to the Supreme Court.
At this point, it is difficult to tell what motivated today's rulings. We may not know for certain unless and until the Supreme Court considers Travel Ban 3.0 on the merits. Today was a notable victory for the administration. But the legal battle over Travel Ban 3.0 is far from over.
UPDATE: Immigration law scholar Peter Margulies reaches similar conclusions to mine, in an analysis of today's orders at the Lawfare blog.