The latest ruling against the Trump administration’s ban on travel from six Muslim nations is a particularly sharp blow to the president not because it is more sweeping than previous legal decisions — the 9th Circuit’s decision is actually somewhat narrower than the district court opinion in the case — but because it reaches the same result for different reasons.
A panel of judges in San Francisco unanimously upheld a block on implementation of the travel ban without even reaching the question of whether it amounts to unconstitutional religious discrimination. Rather, they found that the president overstepped his authority on statutory grounds, meaning that the administration will have two fronts to defend if and when the matter reaches the Supreme Court. But the case also underlies a disturbing truth: Even if opponents succeed in stopping President Donald Trump from implementing this particular version of the Muslim ban, the fight over the issue is far from over.
Make no mistake, we agree with the 4th Circuit Court of Appeals’ ruling in a case that originated in Maryland finding a direct line between President Trump’s blatantly anti-Muslim campaign trail statements and his administration’s bans against travel from certain Muslim nations. An executive order cannot be divorced from its intent, and if the motivation behind it wasn’t sufficiently clear before, Mr. Trump’s recent tweetstorm of complaints about the “politically correct” version of the travel ban the Justice Department crafted (at his behest) after the initial version was struck down confirms that his intent hasn’t changed. He promised during the campaign a “complete and total shutdown” of entry into the U.S. by Muslims, and he continues to seek, as adviser Rudolph Giuliani put it, a legal way to do it.
Mr. Trump’s latest tweets made it more awkward for Supreme Court justices who might be sympathetic to the president’s case to base a ruling purely within the text of the order — no less than George Conway, husband of White House official Kellyanne Conway, wrote in his own recent string of tweets that they make it harder for the administration’s lawyers to get to five votes on the Supreme Court.
Mr. Conway pointed to a Washington Post analysis noting the extent to which the legal opinions in travel ban cases to that point had focused on the president’s statements and tweets to reach their conclusions.
But if the conservative majority on the Supreme Court is inclined to stay within the “four corners” of the executive order’s text and not broadly consider the motivation behind it, the 9th Circuit shows it still cannot be upheld. The judges concluded that the president had failed to make a case that the order was actually necessary to protect national security, saying that was no “‘talismanic incantation’ that, once invoked, can support any and all exercise of executive power.” Presidents do have substantial latitude in setting immigration policy and in preserving national security, but those powers are not limitless and cannot be exercised arbitrarily. The 9th Circuit found that the president’s order failed to “tie these nationals in any way to terrorist organizations within the six designated countries. … It does not identify these nationals as contributors to active conflict or as those responsible for insecure country conditions. It does not provide any link between an individual’s nationality and their propensity to commit terrorism or their inherent dangerousness.” The case similarly found that a 120-day ban on admitting refugees also violated the Immigration and Naturalization Act without relying on the Frist Amendment’s Establishment Clause to do so.
Timing now becomes a major issue. The executive order was set to expire 90 days from its initial issuance, which means tomorrow. Theoretically, the Supreme Court could interpret the clock as having started when the administration was allowed to begin developing new visa procedures for citizens of those countries. The 9th Circuit ruling says it can now go ahead with that. Even so, it would still take some extraordinary maneuvering by the high court to rule in time to save the order, given its schedule.
But what this latest turn of events underscores is that the executive order is just an appetizer for the “extreme vetting” Mr. Trump has promised, and the president’s latest tweets on the matter show that he is just as determined as ever to keep Muslims out. Whatever the Supreme Court does in this case, we probably haven’t heard the end of the president’s efforts to fulfill one of the basest, most un-American promises of his campaign.
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