In President Donald Trump’s telling, the Supreme Court’s decision this morning to partially stay the 9th and 4th Circuit Courts’ injunctions against his travel ban was a massive legal victory for his administration. “Today’s ruling allows me to use an important tool for protecting our Nation’s homeland,” Trump said in a written statement. “I am also particularly gratified that the Supreme Court?s decision was 9-0.”
Given how controversial and unsuccessful the travel ban executive order has been in the court system thus far, the Supreme Court’s unanimous decision is indeed a surprise (we’ve grown used to 5-4 decisions on controversial matters). The case has to be on solid legal footing to put Clarence Thomas and Ruth Bader Ginsburg on the same side. Apparently, all nine justices?conservative, moderate, and liberal?were able to come to a consensus on the Justice Department’s appeal: that, as chief executive, President Trump can be granted some room to implement the travel ban, which temporarily prohibits immigrants and refugees from six specific Muslim-majority countries from entering the United States.
But that’s where the good news ends for the administration. The bad news is the court refused to give the White House the full legal remedy it was seeking: a complete stay on the injunction, which would have provided the president with the power to implement the order as outlined in the text. The travel ban, the Court states, “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” In other words, if the foreign person petitioning to enter to the U.S. has relatives or a job here, or is a student enrolled in an American university on American soil, the immigration restrictions won’t prevent him from catching a plane and flying into the country.
In the end, the Supreme Court decided to play it safe. The justices surely knew that any ruling on this case was going to cause a lot of consternation. Trump has signed quite a few executive orders during his first five months, but none of them so controversial as the travel ban. Although the second version wasn’t as dramatic as the first?there weren’t thousands of demonstrators crowding airport terminals across the country in the middle of the night, for instance?the restrictions on movement from several predominantly Muslim countries still smacked of religious discrimination to a lot of Americans.
The American Civil Liberties Union wouldn’t be suing the government and defending their case all the way up to the nation’s highest court if they didn’t think the “Muslim ban” was a violation of the Constitution. The U.S. government wouldn’t be appealing the rulings of the circuit courts if it didn’t view the policy as critically important to American security. And the Supreme Court wouldn’t agree to hear the appeal if it didn’t believe the legal dispute needed to be resolved permanently.
In the end, the court was cautious. In effect, they chose to split the baby, giving both the plaintiffs and the defendants slight victories to take home pending a judgment on the merits. That will occur in October, when the justices get down to the constitutional issues at hand. Until then, we can expect Trump and the ACLU to use the intervening summer months to spin today’s motion into a political triumph.