President Donald Trump called the Supreme Court’s decision to hear cases related to his ban on travel from six Muslim nations and to allow it to go into partial effect in the meantime “a clear victory.” But there’s nothing clear about it, either for his administration or for those who could be affected by it. Rather, it is reminiscent of other baby-splitting decisions by the Roberts court in politically tricky cases, and it is difficult to see what it portends either in the weeks ahead or after the court hears arguments this fall.
A decision joined by Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan, Anthony Kennedy and Sonia Sotomayor sets a new standard for which nationals from the six countries named in Mr. Trump’s executive order will be allowed in the country while the administration devises its new “extreme vetting” procedures.
Anyone with a “bona fide relationship to a person or entity” in the United States will be allowed in; those without such a connection won’t. They came to that standard based on the circumstances of the parties in the cases before them — two Americans who were seeking entry of family members from affected nations, and the state of Hawaii, which argued it had been harmed by the effect on university students.
There is some logic there; the court is responding to the particular kinds of harms claimed by the complainants, but it is declining to do so for others who are not similarly situated, and it is recognizing that it lacks a responsibility to look out for potential harms to non-American citizens abroad.
But as Justice Clarence Thomas points out in a separate opinion joined by Justices Samuel A. Alito and Neil M. Gorsuch, the other six justices have opened up a minefield of implementation and enforcement questions. Who is to decide what counts as a “bona fide” relationship? The Trump administration, presumably, and given the likelihood that it won’t be overly generous in its assessments, that portends an avalanche of new litigation from aggrieved would-be travelers. The court’s majority says those who have “close family members” in the United States or those who attend school here, have jobs here, invitations to lecture here, etc., would be allowed to enter, but others — tourists, presumably — would not. The court says an immigration advocacy group couldn’t simply sign up would-be travelers as clients to avoid the terms of the executive order, but how that relates to refugees working with resettlement agencies here is unclear. Justice Thomas accuses the court of straying into the turf of the political branches of government, and he has a point. The court essentially made policy on the fly without clearly knowing the consequences; that’s the territory of the Trump administration and the current Republican Congress.
Justice Thomas reads into the majority opinion an “implicit conclusion that the government has made a strong showing that it is likely to succeed on the merits — that is, that the judgments below will be reversed,” but we wouldn’t be making that bet just yet. Remember, the court was being asked to uphold a preliminary injunction, which means it had to determine in advance of seeing all the evidence and hearing all the arguments that the complainants had a high likelihood of success and would otherwise suffer irreparable harm. That’s a high standard.
Rather than sending a clear signal about the case’s ultimate outcome, this development smacks of Justice Roberts’ instinct for messy compromise in politicized matters, as in the ruling upholding the Affordable Care Act’s individual insurance coverage mandate under Congress’ taxation powers while declaring the law’s Medicaid expansion optional for the states. The coalition here is even the same — Mr. Roberts plus the liberal bloc and the swing-voting Justice Kennedy. It may keep the court from appearing to take sides in a partisan dispute, but it also fails to make a clean statement on the issues at hand.
When the time comes to decide the merits of this case, and not just whether to stay a preliminary injunction on the executive order, the court should not and cannot skirt the big questions. Can the president enact a policy based on a clearly discriminatory intent, and do the courts have any role in evaluating the rationality of a president’s claims to be protecting national security? The judges of the Fourth Circuit Court of Appeals, ruling in a Maryland case, answered no to the former question, and the judges in the Ninth Circuit answered yes to the second. The Supreme Court should do the same.
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