This month, the Supreme Court will issue rulings on a number of cases before its summer recess begins. One decision involves whether the court will lift lower courts’ injunctions on Trump’s travel ban until it hears the full case either later this month or in the fall.
The Department of Justice asked SCOTUS to intervene in the controversy surrounding the legitimacy of Trump’s two attempted travel bans after they were smacked down by lower court rulings. Judges in federal courts declared that his bans unfairly targeted Muslims—a violation of the Constitution. Trump’s administration did such a poor job at writing the executive orders and Trump himself did a worse poor job at keeping his mouth shut about the true intention of the ban—that his efforts were continuously denied.
Does the President have an idea of what the Constitution is?
Now the administration is looking to its buddies on the Supreme Court to help out. Trump hopes to make the SCOTUS decision a political ruling by placing the onus of preventing a future terrorist attack inside the U.S. on the Supreme Court. With the introduction of Neil Gorsuch to the SCOTUS mix, Trump expects that a swing vote from Justice Anthony Kennedy will decide in his favor.
But as the lower courts’ rulings against the ban have indicated, there’s still a willingness from some branches of the federal government to follow the Constitution. The most recent decision on Monday, from a federal appeals court in San Francisco, upheld a lower court’s ruling that blocked Trump’s revised version of the travel ban.
A Brief History of Trump’s Travel Ban
At the beginning of his administration, Trump followed up on his campaign promise for “a total and complete shutdown” of all Muslims entering the U.S. by issuing an executive order that prohibited the entry of refugees and citizens from seven Muslim countries: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.
Chaos ensued at the nation’s airports as people traveling from targeted countries were detained at the gates by immigration officials. Family members anxiously awaited for their loved ones, protesters arrived in large numbers at the terminals, and the Left lawyered up. Hundreds of lawyers showed up at about a dozen airports all over the country to represent people who were being held at the airport.
To avoid questions about the legality of Trump’s executive order, administration officials proclaimed that it wasn’t a travel ban, but a “vetting system,” even though every single comment from Trump prior to that called it a travel ban.
The ban was immediately challenged in the courts and, in February, a federal judge issued an injunction against the ban. In response, the Trump administration issued a revised ban on March 6 that temporarily stopped the U.S. refugee program, removed travel restrictions on Iraqi citizens decreed by the first travel ban, and deleted all language referring to Muslims.
The Trump administration defended the travel bans, citing the risk of a terrorist attack as an impetus for the executive orders that issued the travel bans. The administration also asserted that the President has the unchecked authority to block foreigners from entering the United States. (Even though we all know that this incompetent President shouldn’t have unchecked authority to do anything.)
The revised travel ban was soon put to the test when two federal judges in Hawaii and Maryland ordered injunctions against it by concluding that the ban continued to discriminate against Muslims. The Fourth Circuit Court of Appeals in Richmond heard the government’s case at the beginning of May in an extraordinary proceeding that was livestreamed for the first time in the court ever.
Richmond Court’s Ruling on the Travel Ban
In the Fourth Circuit’s 10-3 ruling on May 25, Judge Roger Gregory wrote in his opinion that the President’s power “cannot go unchecked” and that the context of Trump’s travel ban “drips with religious intolerance, animus, and discrimination.” The travel ban was a direct violation of the Establishment clause of the Constitution—the part of the First Amendment that prohibits the government from making any law respecting the establishment of religion. You know, the whole freedom of religion thing? Yeah, that one.
The judges who dissented in the ruling set up the political future of the Supreme Court arguments by saying that “the real losers in the case are the millions of Americans whose security is threatened.” Also central to the Fourth Circuit’s proceedings was the argument on whether the court should consider Trump’s comments from the campaign when he promised to ban Muslims from entering the country. In his dissenting opinion, Judge Paul V. Niemeyer predicted the court’s majority reliance on campaign statements would face skepticism at the Supreme Court.
Sessions Takes the Travel Ban to SCOTUS
In early June, Attorney General Jeffrey Sessions petitioned the Supreme Court to hear the government’s appeal of lower court rulings and to lift the temporary injunction of Trump’s travel ban until the court hears arguments after the SCOTUS recess. If the court decides to hear the case, some think that the justices will order a special hearing before they break for summer vacation.
After the Justice Department’s filing, Trump did us all a favor by shooting himself in the foot, AGAIN. And on Twitter, of course. He undercut the Justice Department’s case, which argued that the ban isn’t really a ban, by tweeting:
In its decision announced last Monday, the Ninth Circuit Court of Appeals in Hawaii cited the above tweet and said the President “exceeded the scope of the authority delegated to him by Congress.” Trump’s ban got the “Good-bye” Aloha. A few days later, the Trump administration adjusted the timing of the travel ban because the one issued in March expired in early June. Trump ordered a 90-day ban to begin on six nations and a 120-day ban on refugees to begin 72 hours after the lower court injunctions are lifted.
Phew. That’s a lot of bans.
Supreme Court Showdown
In mid-June, 17 attorneys general, including Virginia’s Mark Herring, filed two amicus briefs with SCOTUS to oppose the ban. In a press release to announce the amicus filing, Attorney General Herring said, “This ban is unconstitutional and un-American, and I will continue to stand up for all Virginians and their freedom to worship however they choose.”
We’ll see how SCOTUS acts. If the Court decides to grant the stay, then it would indicate that the Court agrees that the Muslim ban is really about national security. Also in question here will be if a tweet can be legally considered to be an actual statement by the President. Nonetheless, this could be one of the first SCOTUS rulings in many about the legality of the Trump administration’s actions.