The Supreme Court just made the travel ban fully operational (for now)
The Supreme Court ruled Monday that the Trump administration is allowed to stop certain groups of people from six majority-Muslim countries from entering the United States — including relatives of US citizens, and people with job offers from US businesses — until the Court gets a chance to hear the lawsuits against the Trump administration over the ban.
Prior to the Monday ruling, the executive order the administration released in September — its third version of a “travel ban,” and the first designed to be in effect indefinitely — was in effect only for certain people from Chad, Iran, Libya, Somalia, Syria, and Yemen who did not have “bona fide relationships” with people or businesses in the United States. With Monday’s ruling, however, even those people who do have “bona fide relationships” can be denied visas or banned from entering the US. (Bans on some people from Venezuela and North Korea were allowed to go into effect without incident.)
The Supreme Court’s ruling wasn’t unanimous: Liberal Justices Ruth Bader Ginsburg and Sonia Sotomayor indicated they would have allowed the limits on the ban to stay in place. But it’s the first unalloyed victory the Trump administration has had in nearly 11 months of litigation on the travel ban.
After months of embarrassing smackdowns from judges, the administration might finally have come up with a version of the travel ban that fits within the broad powers the courts have given the executive branch to make immigration policy, without having to answer too many questions about why.
This isn’t the travel ban you remember from January anymore
Since we’re now on the third version of the Trump administration’s travel ban, a brief review: The first version of the travel ban was issued in January, was in effect for a week before being put on hold by the courts, and was withdrawn in February. The second was issued in March, was put on hold by the courts before its start date, was finally allowed to go into effect by the Supreme Court in June, and expired in September. The current version was issued at the end of September, was put on hold before it was set to go into effect, was allowed to proceed for people without bona fide relationships in November, and is now, in December, being allowed to go into effect in full.
In other words, the administration has been finding a little more legal success with each version of the ban — which makes sense, since it’s deliberately written each executive order to be more careful than the last.
Being careful doesn’t just allow the administration to avoid setting off obvious constitutional alarms (like trying to ban all refugees except for “persecuted religious minorities,” which President Trump helpfully clarified to a Christian Broadcasting Network interviewer was meant to favor Christians living in the Middle East). It makes it easier for the administration to argue that the courts shouldn’t be scrutinizing its immigration policy at all — because court precedents give the executive branch a lot of power to decide who can and can’t enter the United States, and give the judicial branch very little power to scrutinize the rationale for such policies (to see if they’re, for example, discriminatory).
The first version of the ban (which covered all people from seven majority-Muslim countries for 90 days, and nearly all refugees for 120 days), signed in January, was written in haste by the White House without senior officials even giving input. Then-Homeland Security Secretary John Kelly was reportedly in the middle of being briefed about the executive order when he saw President Trump signing it on television. The ban went into effect less than 12 hours after it was signed, without officials at US airports and ports of entry being trained. The Trump administration couldn’t even agree for a few days on whether it was trying to keep green card holders from the affected countries from reentering the country.
It was a mess. And that mess made it extremely difficult for the administration to argue that the executive order stood on its own, and wasn’t just a hasty attempt to enforce Trump’s campaign promise to stop Muslims from entering the US. So the ban was put on hold by the courts after only a week.
The administration appeared to learn its lesson — kind of. It went through a more detailed review process for the second version of the ban, which Trump signed in March, including asking security agencies to assess the countries it wanted to ban (though leaks indicated that officials at some of those agencies didn’t actually agree with the idea of banning people based on their countries to begin with). That ban ended up dropping one country (Iraq) from the ban list, and got rid of the loophole for refugees of “religious minorities,” but ended up looking much like the first.
The current version of the ban, unlike the previous two, doesn’t have an end date and is instead in effect until the federal government decides to add or remove countries from it. Not only is the list of banned countries predicated (in theory) on the findings of a Department of Homeland Security report, but it adds nuance to the categories of who is banned: People with work visas from certain countries aren’t covered under the ban, for example. It also, crucially, includes two countries that aren’t majority-Muslim.
To the ban’s critics, the underlying purpose for the policy remains the same: to provide legitimate-looking cover for the “Muslim ban” campaign promise. That renders it, in their minds, inherently illegitimate.
The Supreme Court didn’t rule against the ban’s challengers on Monday; it didn’t say anything about the merits of the lawsuit. It’s just letting the Trump administration fully implement its desired policy until the Court itself gets a chance to examine its constitutional merits.
In practice, the full travel ban still won’t look like the January version; it’s going to be implemented away from the US, in foreign airports and US embassies. But it’s going to have a more direct impact on American communities than previous bans have. For the first time since early February, American families will be unable to bring their parents, children, or siblings to the US (to settle or even to visit). Businesses that have agreed to hire Iranians won’t be able to bring them here to work.
And they won’t know when — or whether, ever, at all — that will change.