Wednesday December 6, 2017
ON MONDAY, THE U.S. Supreme Court released a brief, unsigned ruling declaring that President Donald Trump’s stalled travel ban would be allowed to go into effect while the issue is litigated in lower courts.
While Trump’s September proclamation targeting citizens of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen was stalled by two district court judges in October, the final verdict on the issue is still outstanding. Two separate challenges will be heard in appeals court this week, and the case will in all likelihood eventually end up before the Supreme Court for a hearing on its merits. Monday’s ruling — despite dissenting votes from Justices Ginsburg and Sotomayor — was a significant gesture of support for Trump’s position, and a strong indication of how an eventual Supreme Court ruling is likely to swing.
In the meantime, citizens of the eight countries affected by Trump’s order will feel the full force of the ban. In most of their cases, this will mean an almost complete halt on immigration to the United States: Monday’s ruling ends the former compromise, struck in June, that allowed some with “bona fide relationships” to obtain entry to the country.
“The Supreme Court’s decision will prevent many eligible people from reuniting with their families, resuming their studies, or taking up jobs,” said Mariko Hirose, litigation director at the International Refugee Assistance Project, one of the groups leading the legal fight against the ban. “This ruling will have devastating consequences for these individuals and the Muslim community at large.”
Trump’s antagonism toward Muslims pre-dates his administration, and since taking office he’s often trafficked in Islamophobic rhetoric. Just last week, he retweeted incendiary (and largely fabricated) anti-Muslim videos from Britain First, a far-right group in the U.K.
In previous hearings on the ban, Trump’s inflammatory statements on Twitter were used by advocates as evidence of the religious nature of the ban. In its statement on the Supreme Court’s decision, the ACLU, one of the groups challenging the ban in court, cited these most recent Tweets as further evidence of Trump’s Islamophobic animus. “President Trump’s anti-Muslim prejudice is no secret — he has repeatedly confirmed it, including just last week on Twitter,” said Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project.
While dramatic episodes of popular resistance have unfolded in response to the ban, the Trump White House refused to relent in its crusade. Throughout a year of legal complications, Trump has reiterated his commitment to the ban, framing the issue in dramatic terms of national security and telling reporters in September that his stance on the restrictions was “the tougher, the better.”
On Monday, White House spokesperson Hogan Gidley said the administration was “not surprised” by the ruling, adding, “We look forward to presenting a fuller defense of the proclamation as the pending cases work their way through the courts.” Attorney General Jeff Sessions called the order “a substantial victory for the safety and security of the American people.”
The nearly yearlong battle over the ban has seen the issue lose much of the public momentum that earlier spurred outcry. Yet the current iteration of the ban, which now appears likely to be upheld by the nation’s highest court, holds more grave implications than either of its previous versions.
The other two attempts, issued in January and March, were construed as temporary moratoriums, the version currently under litigation is intended to be permanent.
This third version was based on a vaguely-worded security assessment that has been used to argue for the impartiality, and necessity, of the ban. (The alleged security concerns behind the assessment have not been made public, however, as Trump administration lawyers have said the document should not be admitted as evidence in the court battle).
Previously, lower courts have found the argument unconvincing. “To the extent that the Government might have provided additional evidence to establish that national security is now the primary purpose for the travel ban, it has not done so,” argued U.S. District Court Judge Theodore D. Chuang in October, raising concerns that Trump’s order amounted to religious discrimination.
The Supreme Court’s latest decision puts on hold two lower court rulings decisions by Maryland and Hawaii district courts, which are now up for appeal at the Fourth and Ninth Circuit Courts of Appeal, respectively. Both appellate courts have previously upheld in part rulings from lower courts enjoining the ban.
In a May decision, the Fourth Circuit’s Chief Judge Roger Gregory upheld “in substantial part” the Maryland court’s issuance of a nationwide preliminary injunction blocking the ban. Trump’s executive order “speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination,” Gregory wrote.The First Amendment surely “stands as an untiring sentinel for the protection of one of our most cherished founding principles — that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another.”
The Ninth Circuit, however, did not uphold the injunction on constitutional grounds, focusing instead on whether the travel ban was permitted under the Immigration and Nationality Act. Trump exceeded the authority given to him by Congress, the court wrote, by failing to make a finding that the entry of the classes of people banned by his executive order would be “detrimental to the interests of the United States.”
The Ninth Circuit will hear oral arguments on the latest challenge to the travel ban on Wednesday, and the Fourth Circuit will do so on Friday. Regardless of how the appellate courts rule, the case is almost certain to end up back before the Supreme Court. If the appellate courts act quickly, the high court would be able to hear arguments and make a decision before its current term expires at the end of June.
In the meantime, the roughly 100 million Muslims affected by the ban, along with many other non-Muslims in the eight targeted countries, will remain blocked from nearly all travel to the United States, regardless of family ties. American companies, universities, and communities are left to grapple with the domestic fall out, while the geopolitical implications remain ominous and unclear.