Trump's Latest Travel Ban Could Be the Toughest to Challenge

Earlier iterations of the executive order were rushed and unpolished. But the third version could very well pass the Supreme Court’s test.

Like grinning pumpkins left too long in the rain, the president’s first two travel bans are collapsing into a soggy mess.

That collapse is being portrayed as a victory for the administration, but it is not. The ban and the government’s inept efforts to defend it have permanently damaged this administration’s legal credibility.

In a brief order this week, the Supreme Court vacated a decision from the Fourth Circuit that struck down the ban on immigrant and non-immigrant admissions, leaving nothing for it to decide. A provision of President Trump’s executive order temporarily suspending entry had “expired by its own terms” on September 24, the announcement said. Thus, the case challenging it, filed in Maryland, is “moot”—meaning time has passed it by. Under an existing Court practice, the justices left the previous district- and circuit-court decisions, and the injunction, devoid of legal force.

Still “live,” for the moment, is the case coming to the Court from Hawaii, which in part contests a provision in the ban barring the entry of refugees. A Hawaii court had blocked that part of Trump’s executive order; the Fourth Circuit had not. But because the refugee ban will expire this month—the refugee quota, by statute, resets every October 1—it seems likely the justices will toss this case as well.

That would end the challenges to the first and second iterations of Trump’s travel ban. (The second version was issued on March 6 after courts rejected the original.) A case against the third and latest version, issued September 24, remains, for the moment, alive in a court in Hawaii.

That ban may prove much harder to challenge than the first two. In fact, the whimpering fate of the first two travel bans may say less about the resilience of the American legal system than about the incompetence of the early Trump White House. Better preparation for the ban at the beginning might have turned the result the other way.

The administration issued the order a week after Trump took office, but it seemed surprised when chaos erupted at the airports. Some passengers who lived in the United States faced immediate exclusion; lawyers swarmed the courthouses; and district judges, seeking to calm the airports, issued orders requiring the admission of the passengers. The judges had to make those decisions on the fly. Some had only minutes or hours to read the order. To most of them, I suspect, it seemed to fulfill Trump’s campaign promise of a “total and complete shutdown of Muslims entering the United States.”

The bad first impression deepened as judges read the order again and again in the next weeks. The drafters framed it as what Rudolph Giuliani called a “geographic,” not religious, order—a ban on entry from seven predominantly Muslim countries, along with a halt in all refugee admissions. But judges smelled a rat—especially in language offering entry to “minority religions,” when the geography targeted was majority Muslim.

From a legal point of view, the order was simply wretched work. There was no sign that any serious lawyer had read it, much less that it had gone through careful vetting by the departments of Justice, State, or Homeland Security. No one seemed to have foreseen that it would trap existing visa and green-card holders. An extralegal “clarification” by the White House counsel deepened the confusion: Don McGahn told Homeland Security the order didn’t apply to residents; he was apparently unaware that the counsel has no authority to vary or change a presidential order. And Justice Department lawyers told the judges that the president’s decisions on immigration were completely “unreviewable” by judges—a hard argument to sell to, well, judges. But it was all they had. The administration had kept them in the dark, too.

Meanwhile, Trump attacked the “so-called judge” who issued the first injunction, then threatened the Ninth Circuit while it was hearing the case. The administration lost. Stymied in court, the administration withdrew the original order and unveiled a new one in March. It fixed some of the worst problems, but the White House had already lost its credibility; the lower courts enjoined the second order, too.

But let’s imagine a universe in which the White House had involved competent lawyers at the agencies and produced something like the latest travel ban, the strongest of the three, from the start. Imagine they had taken the time to brief Justice Department lawyers on the order and its basis. Imagine Donald Trump had kept his Twitter thumb still as the cases went to court.

I think such a ban’s chances in the lower courts, and especially at the Supreme Court, would have been pretty good.

The reason is that while many people—me included—immediately thought the order was illegal, explaining why was difficult, at least in terms of existing precedent. Immigration laws really do delegate broad (if not unlimited) authority to the president, to whom courts have often deferred. Some cases even suggest that constitutional limitations—like the equal-protection prohibition on race discrimination, or the First Amendment’s Establishment Clause—don’t apply to immigration matters at all. The Fourth Circuit powered past this problem by using Trump’s campaign statements, tweets, and winks at the camera to argue he had discriminatory intent. The Ninth Circuit dodged it by deciding the president hadn’t complied with the immigration statutes, leaving the constitutional issues alone.

I was not sure how those arguments would fare at the Supreme Court. The Court initially narrowed the lower-court injunction against the provision barring immigrants from specific nations when it agreed to hear the cases. The two appeals courts had enjoined the entire ban, meaning that aliens had to be admitted as before. But the Supreme Court said instead that the United States only had to admit people with a “bona fide” connection to the country. That signaled that a majority of the justices were troubled by the injunction. Meanwhile, the three most conservative ones—Clarence Thomas, Samuel Alito, and Neil Gorsuch—voted to uphold the ban in its entirety, suggesting they were sure votes for the administration.

It was not clear that the statutory argument would move even the Court’s more liberal justices. Past cases suggest the Court would be wary of relying on campaign speeches and tweets to establish government purpose, or of extending constitutional guarantees to immigration. To strike the ban down, the justices would have had to make new law limiting the executive’s power—and that they are often reluctant to do.

If I am right, then the third travel-ban order may very likely be upheld. It is written like an actual legal document. Its terms are tailored to specific countries; it includes two non-Muslim countries, Venezuela and North Korea; and, most important, it contains broad authority for consular officers to make individual exemptions for deserving cases in the affected countries. By the lights of this Court, it may not be illegal.

Though it seems years ago, the first travel ban was issued only nine months ago. It’s not impossible that those around Trump have learned from the debacle. If so, their future efforts at imposing Trump’s will may be less easy to thwart.