There’s been a lot of noise over the past few weeks about President Trump’s travel ban targeting individuals from several Muslim-majority countries. There have been court decisions, Supreme Court filings and a new round of baffling presidential tweets.
Here’s what you need to know about the status of one of the signature policy goals of Trump’s young administration.
Remind me how we got here.
During Trump’s campaign, he called for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on” – a move that was met with widespread outrage. Once in office, Trump didn’t go quite as far as he originally said he would, but he did issue an executive order barring people from seven countries from entering the United States for 90 days. The order also affected lawful green-card holders, refugees and others who had already been in the country legally.
Because the order was so broad, courts reviewing it almost immediately struck it down as unconstitutional, and Trump issued a revised order. This new order is less broad: It applies to only six countries (Iran, Libya, Somalia, Sudan, Syria and Yemen – Iraq was left out) and excludes people who are already lawful permanent residents or who already have a visa. The second order rescinded the first, and is the one currently being litigated in the courts.
Don’t some members of the administration keep insisting it isn’t a travel ban? Why do you keep calling it that?
Indeed they do. Perhaps understanding that the courts wouldn’t take kindly to something called a “travel ban,” Sean Spicer assured the country in January that Trump’s executive order was not a travel ban. Last week, Secretary of Homeland Security John Kelly said the same thing: “It’s not a travel ban, remember. It’s the travel pause.”
But their boss is having none of it. Trump has repeatedly called the policy a ban, including this weekend, when he responded to the latest London attacks by tweeting, “We need the courts to give us back our rights. We need the Travel Ban as an extra level of safety!” After much was made of his use of the term “travel ban,” on Monday morning Trump settled the issue as only he could – in all caps. “People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” he tweeted.
So yes, this is indeed a travel ban – or TRAVEL BAN, if you will.
Isn’t the president allowed to make decisions about foreign policy, especially regarding who can enter the country in the face of national security threats?
That’s exactly the argument Trump’s lawyers are making in court. They’re saying that the president, and the president alone, is responsible for decisions related to foreign affairs and national security – and that the courts do not have jurisdiction in this area because they are not experts in the field, nor do they have all the information about foreign threats that the president does. As these government lawyers have written, the president has “broad authority to suspend or restrict the entry of aliens outside the United States when he deems it in the Nation’s interest.”
There’s no doubt these are generally true statements of the law. The problem here is that all evidence points to an unconstitutional anti-Muslim purpose behind all of Trump’s actions. The courts that have reviewed Trump’s orders have almost all concluded that his statements on the campaign trail, some of his statements as president and the particulars of the order itself indicate he is not merely exercising his authority to control who enters this country, but is doing so in a way that is discriminatory based on religion. The Constitution does not allow that.
So where do things stand now?
On May 25th, a federal appeals court covering Maryland (and other nearby states) found that the second executive order violates the Constitution and upheld a trial court’s order stopping it from taking effect. Late last week, the Trump administration asked the Supreme Court to review the case on an expedited timeline and to allow the travel ban to take effect while the high court considers the case. The Supreme Court has given the lawyers arguing against the travel ban until next Monday to respond to the administration’s request that the Court get involved in the matter.
There’s another federal appeals court, this one covering Hawaii and other Western states, that will soon decide another case challenging the ban. This appeal stems from a Hawaii federal court that also found the second travel ban unconstitutional and put it on hold. The appeal in that case was argued before the judges of the appeals court in mid-May, and those judges could issue their decision any day now. The Trump administration has asked the Supreme Court to put this case on hold as well.
The Supreme Court is controlled by conservative Republicans, including Trump’s new appointee, Neil Gorsuch. So will the Court support him?
It’s certainly possible, but it’s not very likely. First, remember that the Supreme Court has to take the case first. The justices may decide they don’t want to get involved, especially if the order is found unconstitutional by a second appeals court. They could just let those courts have the last word.
But even if the Supreme Court does take the case, it’s hard to find five votes for the president. Trump undoubtedly has two justices who will vote his way – Clarence Thomas has an incredibly broad view of presidential power, and Samuel Alito is a conservative partisan. Trump would still need three of the other Republicans to vote his way, and it’s hard to see that happening, even giving him Gorsuch. John Roberts and Anthony Kennedy are conservatives, no doubt, but they will have a hard time voting in favor of a policy that will be looked upon in the future as a dark mark on American politics. In other words, they will not want the Supreme Court to sully its reputation once again by approving racially bigoted policies. All four of the Democrats will vote against Trump, so without one of the Republicans, his order is doomed.
It’s also entirely possible the Court will dismiss the case as moot. Trump’s second executive order is effective for only 90 days, meaning it should expire on or around June 14th. If the order is expired, the Supreme Court might just conclude that it no longer has any role in the matter. The justices will probably find a way around this result, but don’t be surprised if this case ends with a dud.
This is such a complicated case with incredibly high stakes. Why in the world is Trump tweeting about it?
In short, because he’s Donald Trump. This is just what he does.
His tweets about the case Monday morning were incredible. He called the order a travel ban while his advisers and lawyers are trying to portray it as something else; he criticized his lawyers and accused them of watering down the policy while they’ve been telling the courts that the virtue of the second order is precisely that it’s narrower than the first; he said the Justice Department should “seek [the] much tougher version”of the ban before the Supreme Court, something the Court has absolutely no authority to do.
Putting aside his stunning ignorance about how both the Supreme Court and executive orders work, Trump’s latest tweets do nothing to help his case – they show the Supreme Court justices that he acts erratically and impulsively, something that goes against his lawyers’ argument that he should be treated like any other rational-headed president. Many observers have argued that Trump’s actions are harmful to his cause. Among them is Kellyanne Conway’s husband, a former frontrunner to be Trump’s top lawyer who withdrew recently – he trolled Trump on Twitter Monday by saying his tweets were hurting the case and calling them “Sad.”
Of course, the Court could ignore all this and still rule in Trump’s favor. Or Trump could “win” by losing the case; in that scenario, he’d use the decision to further his attack on the courts and, by extension, the rule of law.
But more likely is that Trump’s impulsive narcissism is once again combining with his seemingly uncontrollable bigotry to hinder one of his chief policy priorities, and he will lose because of it.