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.