On Monday the United States Supreme Court, by a 7-2 vote, granted the Trump Administration’s application for an order vacating the temporary stays lower court judges had issued against the implementation of the third version of the Trump travel ban until there is a final ruling on its constitutionality. The ban applies to certain countries, with mostly Muslim populations, believed to be hotbeds of terrorist activity. Two federal appeals courts had refused to vacate the lower court orders and the Trump administration appealed to the Supreme Court.
So as things now stand, until the Supreme Court ultimately decides the constitutional issue of whether the ban violates the constitution in that, in its application, it is effectively limited to largely Muslim nations, the travel ban can be enforced. And therein lies a very significant tale.
To understand what is in play here, it is important to keep in mind the direct issue that was before the district and appellate courts. It was not whether the travel ban was within the president’s authority to promulgate, but rather whether it should be enforced until such time as a final decision is rendered as to that power. Put another way, the question was whether the president should be given the benefit of the doubt until a definitive decision is made as to the extent of his powers.
In this connection, consider the text of the applicable federal law pertaining to immigration underlying the legal issue:
Wherever the president finds the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem appropriate.
It is hard to conceive of any language that would be more absolute in its granting of power over immigration to a president. Yet the various lower courts that ruled against the implementation of the travel ban while the legal issues make their way through the judicial system would not even entertain the existence of an interim presidential presumption.
To us, the refusal to acknowledge an interim presumption, despite the clear language of the law, suggests that the sympathies of many of the judges lie with the anti-Trump “resistance” movement that assumes that every Trump policy that marks a departure from the spirit of the Obama administration must be illegal. Indeed, for some, the “resistance” movement means a no-holds-barred, full-court campaign of obstruction and challenge to almost anything President Trump does or says.
In fact, the lawsuits that led to the lower court stays is only half of the story. The other half is that the plaintiffs forum-shopped. That is, they chose to bring the lawsuits in areas where most of the federal district judges were appointed by President Obama and believed to be unsympathetic to the Trump immigration plan. Similarly was their angling to engineer, through their selective choices of trial judges, which of the federal circuit courts of appeal that would necessarily hear any appeals of the rulings of the district judges.
The Supreme Court’s allowing the Trump travel ban to go into effect until the immigration issue is definitively decided is welcome.
