{"id":9442,"date":"2017-06-27T05:00:57","date_gmt":"2017-06-27T05:00:57","guid":{"rendered":"http:\/\/www.lifeandnews.com\/articles\/?p=9442"},"modified":"2017-07-04T09:54:16","modified_gmt":"2017-07-04T09:54:16","slug":"4-ways-the-supreme-court-could-rule-on-trumps-travel-ban","status":"publish","type":"post","link":"https:\/\/www.lifeandnews.com\/articles\/4-ways-the-supreme-court-could-rule-on-trumps-travel-ban\/","title":{"rendered":"4 ways the Supreme Court could rule on Trump’s travel ban"},"content":{"rendered":"

Anthony Johnstone<\/a>, The University of Montana<\/a><\/em><\/p>\n

The Supreme Court has decided<\/a> to hear two legal challenges to President Donald Trump\u2019s revised \u201ctravel ban.\u201d<\/p>\n

Among other things, the executive order<\/a> Trump signed in March temporarily bars entry of nationals from six predominantly Muslim countries: Iran, Libya, Somalia, Sudan, Syria and Yemen.<\/p>\n

In cases arising out of Maryland<\/a> and Hawaii<\/a>, lower courts had blocked applying the ban to all nationals from the six countries. Now, under the Supreme Court\u2019s June 26 order, family members, students, employees and others with \u201ca bona fide relationship with a person or entity in the United States\u201d will be allowed entry. At the same time, the Supreme Court will allow part of the travel ban to go back into effect for \u201cforeign nationals abroad who have no connection to the United States at all.\u201d<\/p>\n

The Supreme Court will hear the combined cases in October after the justices return from summer recess. Its decision will be its first major encounter with a president who criticizes<\/a> the courts as political. As a professor of constitutional law who studies<\/a> law<\/a> and politics<\/a>, I see four ways forward for the Supreme Court in these cases.<\/p>\n

Two ways to strike down the travel ban<\/h2>\n

1.<\/strong> The Maryland case was brought by U.S. residents who are separated from family members in the six named countries. It challenges the travel ban as an unconstitutional \u201cestablishment of religion\u201d<\/a> under the First Amendment. In earlier cases<\/a>, the Supreme Court has said the Establishment Clause \u201cforbids an official purpose to disapprove of a particular religion\u2026\u201d Because the travel ban singles out six countries with overwhelmingly Muslim populations, the lower court held<\/a> a \u201creasonable observer would likely conclude\u201d the travel ban is intended to discriminate against Muslims. In doing so, it relied on Trump\u2019s controversial statement<\/a> during the campaign calling for \u201ca total and complete shutdown of Muslims entering the United States until our country\u2019s representatives can figure out what is going on.\u201d A decision on these grounds would require the Supreme Court to question the president\u2019s motives \u2013 a highly unusual move.<\/p>\n

2.<\/strong> The second case was brought by the state of Hawaii on behalf of its state university and a United States citizen whose Syrian mother-in-law seeks to immigrate. They claim the travel ban exceeds the president\u2019s authority under immigration law. The travel ban relies on a 1952 law<\/a> authorizing the president to \u201csuspend the entry of all aliens or any class of aliens\u201d if he finds their entry \u201cwould be detrimental to the interests of the United States.\u201d Congress reformed<\/a> immigration law in 1965 to prohibit discrimination on the basis of nationality in issuing visas, the documents allowing immigrants to enter the United States. The court held<\/a> that the president did not show entry of people from the six countries \u201cwould be detrimental\u201d under the 1952 law, and that the travel ban discriminated on the basis of nationality under the 1965 law. A decision on these grounds would leave the issue with Congress, which could then keep or change the law.<\/p>\n

Two ways to leave the law as it stands<\/h2>\n

3.<\/strong> Traditionally, the Supreme Court has been reluctant to second-guess the president\u2019s policy judgments involving national security. In earlier challenges, the Supreme Court has upheld<\/a> the exclusion of individual foreign nationals, even where constitutional rights may be at stake, if the government offers a \u201clegitimate and bona fide reason.\u201d Under this broad language, vague concerns about terrorism could be a good enough reason. As the Supreme Court recognized in granting<\/a> review of the cases, \u201cpreserving national security is an urgent objective of the highest order.\u201d In a separate opinion accompanying the order, three of the Supreme Court\u2019s conservative justices, including Trump appointee Justice Neil Gorsuch, suggested this factor should weigh heavily in favor of upholding the travel ban in its entirety.<\/p>\n

4.<\/strong> The court\u2019s order holds another clue about how it might decide the case. It asks the parties to brief the court on whether the challenges to the travel ban \u201cbecame moot\u201d or, or legally meaningless, when the 90-day travel ban ended, according to its original terms. That period is intended to give the government time to review its \u201cvetting\u201d of foreign nationals seeking entry into the United States. Once the government completes its review, the travel ban loses its original justification. The president recently moved back<\/a> the 90-day clock to start when it takes limited effect after the Supreme Court\u2019s order. Yet mootness remains a possibility. Even the extended timeline will end before the case is argued in October. If the case is moot, the Supreme Court would dismiss it without reaching a decision on the legality of the ban.<\/p>\n

Win, lose or draw<\/h2>\n

It can be tempting to score these outcomes as either \u201cwins\u201d or \u201closses\u201d for President Trump. However, the back-and-forth between the courts and the administration has already led to a significantly narrower revised ban after earlier<\/a> cases<\/a> struck down the original ban<\/a> issued in January. Many people who would have been subject to both the original and revised travel bans now can enter the United States legally thanks to these cases.<\/p>\n

This sometimes tense dialogue between the president and the courts is typical to the resolution of high-stakes legal controversies. For example, the government argued that the courts had no role to play in determining the rights of detainees at Guantanamo Bay after 9\/11. Yet, the Supreme Court issued<\/a> several<\/a> decisions<\/a> that prompted the president and Congress to revisit and temper detainee policies. In the last of these cases, Justice Anthony Kennedy on behalf of the Supreme Court encouraged<\/a> the president and Congress to \u201cengage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism.\u201d<\/p>\n

\"TheWhatever the fate of the travel ban, it is unlikely the Supreme Court will have the last word when it issues a decision this fall. Striking down the travel ban as unconstitutional would still allow for new restrictions on immigration. Upholding the travel ban would still allow for narrower challenges to the policy and its implementation. Holding the travel ban illegal under immigration law, or finding the case moot, would throw the issue back to the president and Congress. In each of these outcomes, look for the Supreme Court again to encourage \u201ca genuine debate.\u201d<\/p>\n

Anthony Johnstone<\/a>, Professor of Constitutional Law, The University of Montana<\/a><\/em><\/p>\n

This article was originally published on The Conversation<\/a>. Read the original article<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Anthony Johnstone, The University of Montana The Supreme Court has decided to hear two legal challenges to President Donald Trump\u2019s revised \u201ctravel ban.\u201d Among other things, the executive order Trump signed in March temporarily bars entry of nationals from six predominantly Muslim countries: Iran, Libya, Somalia, Sudan, Syria and Yemen. In cases arising out of […]<\/p>\n","protected":false},"author":44,"featured_media":9443,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[4],"tags":[1697,479,2029,1901,2641,1602,2640,1666],"_links":{"self":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/9442"}],"collection":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/users\/44"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/comments?post=9442"}],"version-history":[{"count":2,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/9442\/revisions"}],"predecessor-version":[{"id":9495,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/9442\/revisions\/9495"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/media\/9443"}],"wp:attachment":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/media?parent=9442"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/categories?post=9442"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/tags?post=9442"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}