SCOTUS to hear Trump’s Muslim travel ban appeal; ban to partially go into effect

The U.S. Supreme Court gave the Trump administration the go-ahead Monday to begin enforcing part of the president’s executive order restricting travel from six predominately Muslim countries.

Trump, in a statement called the court’s action “a clear victory for our national security.”

“Today’s ruling allows me to use an important tool for protecting our Nation’s homeland,” Trump said in the statement. “I am also particularly gratified that the Supreme Court’s decision was 9-0.”

This is not at all true. This is “alternative facts” in Trump World’s alternative reality, in which Dear Leader must always be winning.

While the full Court said it would hear the case in the fall, six of the justices, including Chief Justice John Roberts, kept part of the injunction from lower courts in place while allowing only part of the 90-day halt on new visas from Iran, Libya, Somalia, Sudan, Syria, and Yemen to go into effect.

The Court asked the parties to brief the issue whether this case is moot as of June 14, the expiration of the original executive order. And because this case will not be heard until October and likely decided sometime later, the Court has set up this case to be dismissed as moot, so that it can avoid rendering a decision on the merits this fall.

Amy Howe of SCOTUSblog explains the reality-based world of the actual facts of this case. Justices agree to weigh in on travel ban, allow parts of it to go into effect:

Today the Supreme Court agreed to review rulings by two lower courts blocking the implementation of President Donald Trump’s March 6 executive order, popularly known as the “travel ban.” Citing national-security concerns, the order imposed a freeze on new visas from six Muslim-majority countries (Iran, Libya, Somalia, Sudan, Syria and Yemen). But the full U.S. Court of Appeals for the 4th Circuit had put the order on hold last month, concluding that – although it did not specifically say so – the order likely violated the Constitution because the president intended to discriminate against Muslim travelers. Earlier this month, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit also blocked the order, but on a different ground: It concluded that the order exceeds the authority that Congress has given the president to regulate immigration. The court’s announcement today means that the justices will review both of those decisions. The justices also granted the Trump administration’s request to allow the ban to go into effect, at least for would-be travelers who don’t already have some connection to the United States.

The announcement came in a brief, unsigned opinion issued by the justices when they took the bench this morning to release opinions in cases argued on the merits earlier this term. The court’s opinion focused primarily on the government’s request to reinstate the ban while the cases are before the Supreme Court. Emphasizing that the purpose of temporary relief like this is “to balance the equities as the litigation moves forward,” the court made clear that it had the authority to “tailor” its ruling so that it applied to some, but not all, of those affected.

That is precisely what it did. The lower courts had considered the hardships that the ban would create for the named plaintiffs in the case: two men with family members who want to come to the United States from the affected countries; and the state of Hawaii, whose state university had admitted students from those countries. But, the court explained today, the lower courts’ orders barring enforcement of the ban “reach much further than that,” because they also apply to people living overseas “who have no connection to the United States at all.” When those people are unable to come to the United States, the court reasoned, their constitutional rights are not violated – because they have no right to come to the United States – and their exclusion from the country does not harm anyone in the United States.

The justices therefore upheld the lower courts’ orders blocking enforcement of the ban with regard to the named plaintiffs and others like them – people who “have a credible claim” of a genuine relationship with someone or an institution in the United States. When that relationship is with an individual, the court made clear, it must be a close family member. And when the relationship is with an institution, the relationship must also be a genuine one, rather than one created just to get around the travel ban.

Justice Clarence Thomas filed a separate opinion, which was joined by Justices Samuel Alito and Neil Gorsuch. They would have allowed the government to reinstate the ban for all travelers from the six affected countries, regardless of any personal connection that those travelers might have with the United States. Thomas complained that today’s order could prove “unworkable,” requiring government officials to try to figure out whether would-be travelers have enough of an connection to the United States to come here, and could “invite a flood of litigation.”

The court combined the two cases for oral argument, which will take place in October of this year. The justices also asked the two sides to address a new question: Whether the challenges to the provision suspending entry for travelers from the six Muslim-majority countries became moot – that is, no longer an ongoing dispute – on June 14, 2017. In a filing on June 12, the challengers in the 4th Circuit case had argued that the provision would expire on that day: They reasoned that the March 6 order made clear that the bar would apply for 90 days from March 16, when the order became effective, and that 90-day period ended on June 14. But on June 14, Trump amended the March 6 order to specify that the bar would go into effect when the lower-court orders blocking its implementation were lifted.

According to a presidential memo issued earlier this month, the permissible portions of the ban would go into effect 72 hours following the court’s actions. The revised Muslim travel ban does not apply to anyone who has already obtained a valid visa. People who show up at overseas airports with a visa will be allowed to board flights to the U.S. and will be allowed to enter the country when they get here, a Homeland Security official said.

Because the Supreme Court will not hear this case until early October, the 90-day ban will likely have lapsed by the then. The case might then be dismissed as moot. But the administration would have succeeded in fully carrying out the executive order to review immigration laws in the meantime — something it has had  more than enough time to do already and has done nothing — in what would amount to a pyrrhic victory.

It’s important to note the troubling direction the Roberts Court is taking. The Roberts Court is increasingly expanding the scope of so-called “religious liberty” to discriminate based upon one’s Christian beliefs, from Hobby Lobby to Little Sisters of the Poor for contraception, and on the same day as this Muslim travel ban order, the Court granted cert in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the justices will consider the claim of a “cake artist” and his religious beliefs and laws barring discrimination against LGBTQ people.

The Court also ruled on Trinity Lutheran Church v. Comer, in which the Court required states to include religious entities in public benefit programs generally open to other entities. This case holds the potential for further erosion of the separaton of church and state. See Frank Ravitch, Professor of Law and Walter H. Stowers Chair in Law & Religion at Michigan State University College of Law, Symposium: Trinity Lutheran and Zelman – Saved by footnote 3 or a dream come true for voucher advocates?

So if you are a Christian, you are golden. If you are a Muslim, however, not so much. Moustafa Bayoumi writes, Trump doesn’t want Muslims in the U.S. That’s OK with the supreme court:

Over the next several days, we will no doubt hear copious commentary on the Supreme Court’s opinion, with some legal scholars arguing that the Court has not really sided with Trump because people from the six Muslim-majority countries listed in the executive order will still be allowed entry to the United States if they can show that they have a “bona fide relationship with a person or entity in the United States.”

This means that if you are a student with a valid visa, or if you have family already in the country, or if you are “a lecturer invited to address an American audience,” you can still be granted admission to the U.S., at least until a final ruling is issued by the Court after it hears arguments in the fall.

This clause will certainly allow many people to gain admission but it does not alter the fundamental fact that people will be excluded from the U.S. not for who they are but simply because of where they come from.

And what determines this geography of exclusion is not the threat of terrorism, since Trump’s own Department of Homeland Security has found that “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity.”

In other words, a partial Muslim ban is still a Muslim ban, and in their muddled and confusing decision, the Supreme Court has legitimized blanket discrimination against Muslims while trying to carve out oddly sized holes and various exceptions. The decision reads like the guilty conscience of a semi-racist bureaucrat.

The court’s opinion will, at least temporarily, enshrine a version of Islamophobia into practice. (And considering past performance, how Customs and Border Protection will enforce the order is also deeply worrying.)

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[T]he Supreme Court is temporarily abetting Trump’s position in its own way. We can’t let that stand. We must use all of our intelligence and resources to ensure that any version of a Muslim ban does not become the law of the land.

We must constantly remind our neighbours and colleagues that Muslims are a part of this country. And we must recognize that the fight over this ban is not only about Muslims but is also, if not primarily, about what kind of executive authority the president will have. A Muslim ban will mean more than losing a few visitors to this country. A Muslim ban could mean losing what we hold dear about our country.