Why Trump’s Travel Ban Did Not Really Win At the Supreme Court Today.

Trump today crowed (or perhaps more accurately “tweeted”) as if he had won a complete victory for his travel ban at the Supreme Court today. You can read the decision here.

Unsurprisingly the President once again overstates his case. In fact, every Plaintiff involved in the case retains relief as the Court of Appeals injunction is sustained for them and still benefits them. Every person in the United States similar to the Plaintiffs in this case retains relief as the Court of Appeals injunction is sustained for them and still benefits all of them. Per the Supreme Court’s ruling the travel ban still “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.” (See p. 12 of linked opinion).

Further, the court did not rule on the merits but issued a complex decision rooted solely in the standards for injunctive relief and a equitable standards for a restraining order. The Court did not address at all whether the travel ban was rooted in religious animus. Nor did the Supreme Court address the argument that the statute does not confer the President authority to unilaterally impose this travel ban. How the court feels about those arguments is uncertain, but in affirming the portions of the injunction it did the Court affirmed that it believed Plaintiffs were likely to prevail on at least one of those arguments. Arguments on the merits are scheduled for next Fall.

Trump’s premature gloating also ignores another major fact. The travel ban says the ban expires “90 days from the effective date of this order.” Section 14 of the travel ban expressly defines the effective date as March 16, 2017. That was 102 days ago. The travel ban has expired by its own internal deadline that Trump created.

Notwithstanding the supposed emergent need for this travel ban not a single act of terrorism has occurred that would have been prevented by it, even though Trump wanted to blame the courts if one did.

The purpose of the travel ban was to review and improve vetting processes. Whatever could have been done in 90 days in that regard could certainly have been done in 102, leaving absolutely no remaining justification for the ban.

To summarize, every Plaintiff won. Every person like the Plaintiffs won. The Defendant took a false victory lap.

Written by

Retired lawyer & Army vet in The Villages of Florida. Lifelong: Republican (pre-Trump), Constitution buff, science nerd & dog lover. Twitter: @KeithDB80

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