The Trump administration finally got some good news from a federal court Monday. In the twin cases challenging the president’s executive order barring entry into the U.S. by nationals of six majority Muslim countries, the Supreme Court handed the government a genuine but very partial victory, with a hint of more to come.
But the victory was limited in a way that anyone who has ever been 12 years old will understand. The court didn’t say the government could never have a pony. But it didn’t say the government could have a pony either. Instead, it said, “If you still want a pony next October, we’ll see.”
The ambiguity arises because, as Georgetown Law professor Martin Lederman pointed out within minutes of the decision, the court merely granted review, and delayed actual consideration of the case until the opening of next October’s term—by which time the specific issue will most likely be moot. At the same time, the interim order preserved the important victories won by many of those actually harmed by the travel ban—family members of American citizens or residents, foreign students at American universities, and potential foreign employees of American corporations.
The administration had been losing badly at every turn in the lower courts—before district courts in Maryland and Hawaii and appeals courts in the Fourth and Ninth Circuits. The Fourth Circuit contemptuously rejected the administration’s claims of good faith and the Ninth argued that the order exceeded the president’s statutory authority. Both opinions were, to say the least, acerbic.