Analysis: The president celebrated the decision to allow parts of the ban to take effect, but ultimately, ‘the president might well lose on this’, says a legal expert
Donald Trump was quick to proclaim victory when the supreme court decided to allow elements of one of his most controversial policies to take effect before justices hear the case in the fall.
“Today’s unanimous Supreme Court decision is a clear victory for our national security,” the US president said in a statement. “It allows the travel suspension for the six terror-prone countries and the refugee suspension to become largely effective.”
But legal experts had a message for the president: not so fast.
While the court appeared to side with the Trump administration on the president’s authority to temporarily bar visitors from Iran, Libya, Somalia, Sudan, Syria and Yemen, immigration lawyers and civil rights advocates said the majority of travelers from those countries would still be permitted to enter the United States under the supreme court’s directive.
“I think it’s a vast exaggeration to say this is a victory for the president,” said Jennifer Gordon, a professor of law at Fordham University who focuses on immigration.
Noting that at least five justices agreed on the need to grant visas to individuals with a “credible claim of a bona fide relationship with a person or entity in the United States”, Gordon argued that the court’s decision reflected a seemingly majority consensus that the Trump administration could not implement an outright ban on immigrants from the six-Muslim majority countries.
“In fact, you might read it as a signal … that the president might well lose on this,” she said.
The president and his surrogates have championed what they claim was a 9-0 ruling in Trump’s favor. In fact, though, the tally represented what is known as a per curiam opinion – on behalf of the court, as opposed to individual justices.
In essence, the court agreed to hear oral arguments on the merits of the executive order. At least three conservative justices on the bench – Clarence Thomas, Samuel Alito, and Neil Gorsuch – would have preferred to have allowed the travel ban to go into full effect, but ultimately the court significantly narrowed the scope of Trump’s order.
Margo Schlanger, a professor of law at the University of Michigan, who also headed the civil rights and civil liberties division at the Department of Homeland Security under Barack Obama from 2010-11, said the supreme court had actually paved the way for the bulk of travelers affected by the ban to come into the US.
“In reality, the travel ban remains largely enjoined,” Schlanger said. “If [travelers] didn’t have a real connection – a job, or enrollment at a school, or a family member – they wouldn’t be able to get visas.
“Most of the travel that’s covered by the travel ban remains stayed,” she added. “I think the Trump administration is spinning.”
Schlanger acknowledged that the supreme court’s ruling did not represent a “home run” for the plaintiffs, since the court had not chosen to simply uphold the injunctions by district courts in both Hawaii and Maryland that had previously blocked the Trump administration from enforcing either the travel or refugee ban at all.
The fate of refugees was now arguably the most uncertain, as they too would be subject to having a “bona fide relationship” in order to gain admission to the US during a 120-day period. The supreme court did not lay out examples of what would count as such in the case of refugees, although it did for other travellers, prompting sharp criticism from advocates.
“The Court’s ruling will leave refugees stranded in difficult and dangerous situations abroad, including those who have already waited a long time for US resettlement,” said Hardy Vieux, the legal director of the advocacy group Human Rights First.
“Many of these individuals may not have ‘bona fide relationships’, but have strong reasons to look to the United States for protection.”
It was not immediately clear if refugee resettlement groups in the US, or religious entities that have sponsored refugees fleeing war-torn countries, would qualify as “bona fide” connections. The number of refugees admitted to the US has already fallen by nearly half in the initial months under the Trump administration, when compared with Obama’s final months in office.
Top Democrats voiced concern that the court had enabled Trump to at least partially see through his pledge to ban both Muslims and Syrian refugees from the US.
“The Trump Administration has consistently shown that discrimination, not national security, is the purpose of this ban,” said Nancy Pelosi, the House Democratic leader.
“The Supreme Court’s move to largely lift the injunctions against the open prejudice of the Muslim and refugee ban sends the wrong message to our partners on the front lines of the fight against terror,” she added.
“We hope that the Court will ultimately come to the only conclusion consistent with our values, our national defense and the Constitution.”
The American Civil Liberties Union, which has aggressively fought against Trump’s travel ban, said it remained confident that the supreme court would ultimately agree with lower court rulings that the executive order was unconstitutional.
“The important thing, from our perspective, is to recognize how narrow the part of the ban that is being allowed to go forward really is,” said Omar Jadwat, the director of the Immigrant Rights Project at the ACLU.
Most of the people visiting from the six countries singled out for exclusion by the Trump administration, he noted, traveled for precisely the reasons the supreme court said should still be permissible.
“The actual on the ground effect of the partial stay that was issued by the supreme court, if the government implements it faithfully, should not be that severe,” Jadwat said.
“On the merits of the case, we think that at the end of the day, the supreme court will agree with the other courts that have looked at this ban effort and find that it’s either unconstitutional or illegal or both,” he added.
“Ultimately, the law is on our side.”