Supreme Court allows watered-down version of travel ban to take effect

A lot went down this morning at the Supreme Court, as was to be expected considering that this was the last day of the Court’s term. First, the Court decided to allow a limited version of President Trump’s already limited ban on travelers from six mostly Muslim countries to take effect. In technical terms, it partially stayed lower court decisions striking down the ban.

The Court also agreed to decide next term (which begins in the Fall) whether the ban is lawful, assuming the issue isn’t “moot” by then. In technical terms, it granted certiorari.

Second, the Court ruled by a vote of 7-2 that religious institutions may not be excluded from state programs with a secular intent — in this case, making playgrounds safer. Chief Justice Roberts, writing for the majority said, “The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution . . . and cannot stand.” Justices Ginsburg and Sotomayor dissented.

Third, the Court agreed to review next term a decision holding that a Denver baker unlawfully discriminated against a gay couple by refusing to sell them a wedding cake. The lower courts ruled that the baker violated Colorado’s public accommodations law, which prohibits refusing service to customers based on factors such as race, sex, marital status or sexual orientation.

The baker had told the gay couple that his religious beliefs would not allow him to have anything to do with same-sex marriage. He noted that other bakeries would accommodate them.

In this post, I will focus on the travel ban ruling. But before doing so, I should note that the biggest news from the Court may be what didn’t go down. Justice Kennedy did not announce his retirement. This doesn’t mean he won’t retire. But today provided him a good opportunity to make the announcement if, in fact, he intends to step down.

As for the travel ban case, the Court’s action means that the Trump administration may impose a 90-day ban on travelers from Libya, Iran, Somalia, Sudan, Syria and Yemen and a 120-day ban on all refugees entering the United States, with this exception: the ban “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.”

The exception is far from trivial. It may not all that difficult for those desiring to enter the U.S. to assert a “credible claim of a bona fide relationship with a person or entity in the United States.” Indeed, would-be terrorists may well have such relationships.

Justices Thomas, Alito, and Gorsuch dissented from the portion of the order imposing this exception. Justice Thomas’ opinion for the three made the obvious point that “today’s compromise will burden executive officials with the task of deciding — on peril of contempt — whether individuals from the six affected nations who wish to enter the United States have a sufficient connection to a person or entity in this country.” It will also likely produce “a flood of litigation until this case is finally resolved on the merits, as parties and courts struggle to determine what exactly constitutes a ‘bona fide relationship,’ who precisely has a ‘credible claim’ to that relationship, and whether the claimed relationship was formed ‘simply to avoid’ the executive order.”

We can hope, however, that those deciding who gets to enter will take a demanding view, undeterred by the threat of litigation, of what claims meet the Court’s standard.

As noted, the Court will undertake a full review of the travel ban next term. It noted, however, that in doing so, it will consider whether the issue has been rendered moot. The ban is a temporary one designed to give the government time to review its vetting procedures.

By the Fall, there may well be a good argument that the government has had sufficient time to do so. But by then, I suppose, the government may reasonably have concluded that no vetting procedures are adequate for at least some of the six countries, at least in cases where the would-be entrant has no bona fide relationship with a person or entity in the United States. Indeed, there may be a new order in place by the Fall.

The Court’s decision to allow at least a limited version of the order to remain in place seems, at least on first impression, to entail a rejection of the ridiculous and pernicious rationale employed by the Fourth Circuit to strike down the ban. That court, like several district courts, relied on statements made by candidate Trump to find that the travel ban is intended to discriminate on the basis of religion. We discussed this argument here.

The Ninth Circuit struck down the ban for a different reason. Usurping the role of the president, it found that the government didn’t establish its case that the ban is justified by national security concerns.

On first impression, it seems to me that the Supreme Court, like the Ninth Circuit, is prepared to usurp the role of the executive — hence the exception it pasted on to the president’s executive order — but disagreed to some extent with the appeals court’s second-guessing, or found that its second-guessing didn’t justify the full scope of its order.

As Justice Thomas points out in his dissent, the Court’s ruling goes well beyond granting relief to the “respondents” in the case — the University of Hawaii, some of whose students are affected by the order, and the American citizen who wants his mother-in-law to enter the country. He noted that a court’s role is provide relief only to claimants who have suffered, or will imminently suffer, actual harm.” By contrast, “it is the role of the ‘political branches’ to shape the institutions of government in such a fashion as to comply with the laws and the Constitution.”

That, at least, is how it should be.

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