Very grateful for the 9-O decision from the U. S. Supreme Court. We must keep America SAFE!
— Donald J. Trump (@realDonaldTrump) June 26, 2017
I’m not sure who I envy the least in this situation: Donald Trump, or his lawyers. Either way, someone dropped the ball in explaining how the Court works, and Trump is not going to be happy when he finds out.
To take this on the surface, the Court did not rule 9-0 in favor of the, quote “MUSLIM BAN,” nor did they rule on anything; score-keeping aside. What happened yesterday is what is supposed to happen in the legal realm.
The Supreme Court handed down a bunch of decisions yesterday, holding some of the most controversial for the end of their term, as is their wont to do. They also signaled what cases they would be taking in the fall, when their next session convenes. Of note, they will take on a case about how religious rights relate to retail operations, and they declined to hear a cases about gun rights. They also handed down a decision about the role of public money in religious institutions, and a 4th Amendment decision. I don’t yet know enough about those last two, so I won’t comment on those until I have done the due diligence.
However, I do want to talk about the MUSLIM BAN and Trump’s so-called “9-0” victory on Monday.
The reality is that this isn’t what happened.
The Supreme Court agreed to take on the full case for the fall docket. In the meantime, parts of the BAN were allowed to go through until the Supreme Court hears the full case. As awful as this sounds for people against it, this is pretty standard legal practice.
And this is what makes me feel for Trump’s lawyers. At some point, preferably before October, they will have to explain to him that he didn’t win on Monday and the case is going to have a full hearing and an actual decision. This decision may not bode well for him. The order to allow a truncated version of his already watered down Executive Order to go into place is not really a win for the Trump administration. Granted, it isn’t really a win for his opponents either.
Indeed, what happened is what is supposed to happen with the Court. They don’t yet know how to rule, having not heard arguments, but they have been asked the question; and both sides have made a compelling enough case to cause the Court to hear it. In this case, the government, that is the Trump administration, has made a compelling enough case that invokes their power of national security. On the other hand, the opponents in the case have made a compelling enough case to suggest that Trump has overstepped his Constitutional Authority.
For this reason, the Court has decided to hear the case. In the interim, they have decided to allow the EO to proceed so long as it does not violate areas that are already established case law. And this is the crux of the biscuit. Trump, as president, has the authority to halt immigration, on the basis of national security, from any and all foreign nations. However, his basis for this move must be couched in his authority, and must square with the Constitution.
In the order from the Court, which was unsigned (a point I will get to in a moment), the EO was reinstated with some restrictions. These restrictions actually serve to undercut some of the points that the government made in their arguments. Why? Because those arguments have no basis in established law, and do not mean anything in terms of rational basis.
There has never been any measurable amount of foreign nationals from any of these countries that have come here specifically to do this country harm. In fact, of those who have ever come here to do this country harm, as they relate to the “majority Muslim” countries of the Middle East, more are from Saudi Arabia. Ignoring the actions of previous administrations, the fact remains that Trump just made a deal with them that would grant them billions of dollars worth of weapons – with no apparent rationality for the deal other than to make a sale. This is also not new, but it undercuts the administration’s own arguments that this is about national security.
Second, in the first version of the EO, there was a provision that sought to give priority to potential travelers on the basis of religion. This is a clear and fundamental violation of the First Amendment. The revised EO addresses this issue by stating that this doesn’t mean what the lower court interpreted it as meaning. Regardless, nothing of this issue was addressed in the SCOTUS decision to allow parts of the ban to go into effect while they awaited a full ruling. While Trump is still referring to the EO as a MUSLIM BAN, which may hurt his chances in Court come time for arguments as to intent, the Court has allowed the full text of the second EO to go into effect, with some restrictions.
Indeed, the parts that were allowed to go into effect are so constrained that one has to wonder if Trump understands the law, or if he listens to his lawyers, as this point will surely be brought back up in front of the full Court.
The SCOTUS order allows for a block on travelers if they do not have a “bona fide” reason to enter this country. This is at odds with the flat refusal to allow entry. This bona fide reason is further suggested as being so wide as to allow nearly everyone in but tourists and those under suspicion of terror related activity. And I can assure you, there aren’t many tourists from Syria.
The reasons that are exempt from the ban as now suggested by the Court include, but are not limited to, family of US citizens, family of people living in the US, students, workers, refugees with family, refugees with employment, refugees who helped the US but will suffer if left there, all other refugees, those seeking to build a business, those who already have a business, those wishing to work for a business, and scientists and doctors. This isn’t a win for Trump in his MUSLIM BAN.
Or maybe it is.
We can dissect the text of the Court’s order, but we can only speculate as to how they will rule in the next session.
But, if the previous case law is anything to go on, he may lose this battle. And most of that loss will come from his own statements. A few weeks ago, Sean Spicer admitted in one of the last press briefings to be filmed that Trump’s tweets are official statements from the White House. This was most certainly a mistake, but it was probably because they thought it would be a way to get the press to acknowledge the tweets with respect instead of derision, never understanding that that is the amount of respect that the tweets demand. You might think that all this means is that Trump’s tweets are now legal documents.
But wait, there’s more!
At that same time, Trump went on a rant about how his MUSLIM BAN was just that, a MUSLIM BAN. This will not bode well for the argument on legislative intent, or I suppose, executive intent. This is the part where a law, or an EO, may have been drafted in good faith and the result was a violation. In those cases, the law is overturned, but no one is at fault; the law is done for, but no one really suffers for it legally or politically. It was all done in good faith, and the discriminatory effect is secondary to the face of the statute – the law itself wasn’t the problem, it was the interpretation by the executive.
In short, there isn’t anything that a court order and a tweak by the White House couldn’t fix as far as the text of the law. But, were they really doing this in good faith?
By taking to twitter, against his lawyers’ wishes, Trump has confirmed that his intent was discriminatory. That will, if there is any justice left, sink his MUSLIM BAN. Simply put, he told us that he was trying to violate the Constitution.
So, if his intent was in bad faith, no matter if the result was somehow good, there is that matter to contend to. By taking to twitter, and confirming that he never intended to uphold the Constitution, Trump has undercut his own chances. This is shown in both the lower court rulings, and even in the parts of the BAN that have been allowed to be put in place by SCOTUS while they hear the case.
Trump won his BAN, but it has been significantly altered while the Court hears the case; and it would seem, despite the fact that no one signed the order, that the ruling is not so easy to predict.
At this point, anyone from the “banned countries” can still apply for and, legally acquire a visa to this country, so long as they have a bona fide reason. The ban is symbolic. It’s a win for Trump in so far that he needs one. That’s why he talks about it the way he does. But that brings me back to that parenthetical you read above: This wasn’t a 9-0 decision, and I don’t think he knows how the Court works.
As I explained, this wasn’t a ruling. It was an order to allow the BAN to go into some version of effect until the Court can rule on the constitutionality of the BAN. Further, this order was not signed, that does not mean that it was 9-0. It could be 5-4, because it was only an order to partially reinstate the EO while the Court recessed. We can only speculate as to what the final ruling will be, but it seems unlikely that the most contested parts will be allowed to stand, and even if they are we can probably make a safe bet that the decision will not be 9-0.