Trump's Ban Likely to Travel to the Supreme Court

Protesters rally against President Trump's travel ban on February 4, 2017
in Washington, D.C. Photo: Rena Schild / Shutterstock.com

In the wake of appeals court roadblocks, President Trump's travel ban is likely headed for the Supreme Court, where it will be judged not just on whether or not it's constitutional, but, quite possibly, on how it's faring in the court of public opinion.

One of the biggest issues with this particular case is the question of whether the pending legislation can be judged constitutional or not based solely on the text itself, or if the judges reviewing it can also take into account statements made by President Trump and others in his administration that give context to how and why the order may have come about.

In an interview with i24 News’s David Shuster, Miami attorney Kendall Coffey noted that the bill does seem to be “facially valid and neutral”—in other words, the bill was created for valid reasons. However, Coffey continued, “what the courts are looking at—much more carefully than what you’ve seen, perhaps, in times past—is what was the actual intent of the decision makers?”

Would the order meet the same kind of criticisms if it were tried in the Supreme Court, though?

“Federal courts don’t expect to have trials on whether or not something the president does is a good idea or whether it could’ve been done better,” Coffey noted. “Trump might do better there.”

The bill, now in its second iteration, temporarily cuts off visas for people from Iran, Libya, Somalia, Syria, and Yemen who are seeking to enter the United States. It states that people from these countries who already have valid visas are not affected. It also removes Iraq from the original list of banned countries.

Critics, however, still find fault with the bill as it now stands, particularly given Trump’s presidential campaign statements about wanting to keep Muslims out of the country.

The initial ban, issued on January 27, limited incoming movement from seven countries, triggering massive protests across the US as travelers were stopped at airports and detained for hours. After the US Court of Appeals for the 9th Circuit refused to reinstate the ban, Trump edited the order to its current state.

This version didn’t fare much better than its predecessor, however. The US Court of Appeals for the 4th Circuit ruled 10-3 that the ban violates the Constitution, upholding a lower court ruling that had previously blocked the ban.

Ostensibly, the ban is about national security. However, Chief Judge Roger L. Gregory wrote that the government’s “asserted national security interest…appears to be a post hoc, secondary justification for an executive action rooted in religious animus and intended to bar Muslims from this country.” 

The three dissenting judges, however, questioned whether the majority was right to come to this conclusion, taking into account, as they did, statements outside of the bill itself. Judge Paul V. Niemeyer wrote that, according to Supreme Court precedent, judges are required to review the order “on its face” and that it is “entirely without constitutional fault.”

The parties involved in this dispute now have 90 days to appeal to the Supreme Court. If the Trump administration waits until August to do so, it could be as late as October before SCOTUS hears the case, and arguments wouldn’t take place until February 2018 at the earliest. So the embattled order may very well remain the public eye for quite some time.