Will the Supreme Court Back Trump's Third Attempt at a Travel Ban?

This article was first published on Verdict.

Just days after his inauguration last year, Donald Trump took action to fulfill his campaign promise of "a total and complete shutdown of Muslims entering the United States."

He issued an executive order barring nationals of seven overwhelmingly Muslim countries from entering the United States, excluding refugees, and calling for a review of entry policies in order to put in place what Trump called "extreme vetting."

Numerous lawsuits and two superseding versions of the original version of the Travel Ban later, the US Supreme Court may be poised to vindicate Trump's policy.

Last week, the Court granted review of a Ninth Circuit decision invalidating Travel Ban 3.0.

Yet things are not always what they seem. The government deserves to lose its case in the Supreme Court, but even if it wins, that will not vindicate Trump's cruel and Islamophobic immigration policy.

The early victories for plaintiffs who sued Trump won important delays; they forced the administration to go back to the drawing board to moderate the policy on multiple occasions; and they exposed the administration's fundamental cruelty, mendacity, and incompetence.

Travel Ban 1.0 unleashed immediate chaos. The administration rolled it out without any grace period and with crucial ambiguities, such as whether it barred admission to the country of permanent residents or people with other valid visas.

Government personnel barred formal entry into the country of people disembarking at airports, including parents coming for crucial medical treatment for their young children.

As word spread of the chaotic implementation of the cruel order, resistance galvanized. Cabdrivers in New York City—many of them foreign nationals themselves—boycotted international arrivals in solidarity with the detained travelers.

Volunteer lawyers, both under the auspices of nonprofit organizations and acting on their own, sped to the airports to lend assistance. Clients were signed up and lawsuits filed. Court victories followed quickly.

After suffering an initial round of defeats, Trump blustered about how he would eventually prevail in the Supreme Court, but in fact he backed down. Travel Ban 2.0 superseded Ban 1.0 in March of last year, but it too was enjoined.

Although the government succeeded in having the scope of the injunction cut back somewhat, Ban 2.0 expired by its own terms before the Supreme Court could adjudicate it on the merits. Travel Ban 3.0 was issued last September.

The precise details of the various lawsuits and opinions granting full or partial relief have differed, but three core arguments have framed the litigation over the course of the last year: (1) the president lacked statutory authority to adopt each version of the Travel Ban; (2) the ordinary deference to which the political branches are entitled in matters of immigration does not suffice to justify the Travel Ban, because it so clearly does not seriously advance an interest in national security; and (3) in any event, the administration should not receive such deference, because, as revealed by Trump's own statements and tweets, the Travel Ban is a thinly disguised effort to keep as many Muslims as possible out of the country, thus violating the First Amendment's Establishment Clause and other constitutional principles forbidding religious discrimination.

In addition to adjudicating those questions, the courts have grappled with the scope of their authority to grant relief benefiting non-citizens outside the United States. And the government has objected that a single district judge should not be allowed to grant a nationwide injunction. All of these issues will be up for decision when the Supreme Court considers the validity of Travel Ban 3.0.

How should the Court decide the case? In my view, the government should lose on both statutory and constitutional grounds.

To be sure, the government did some homework before enacting Travel Ban 3.0, reviewing the screening policies of various countries before branding them unsafe. But courts should not grade on a curve.

For the reasons given by the Ninth Circuit, even Travel Ban 3.0 attempts to exercise power that neither Congress nor the Constitution vested in the president. And as I explained when Trump issued Ban 3.0, it is fatally tainted by his invidious intentions.

If there were a truly compelling national security reason for Ban 3.0, that might break the link between Trump's anti-Muslim bias and the policy's text, but all of the circumstances of the Ban's enactment and evolution over time indicate that it remains the lineal descendant of candidate Trump's Muslim ban.

Nonetheless, there remains a substantial possibility that the Supreme Court will uphold Travel Ban 3.0. By voiding interim relief previously granted by the Ninth Circuit, a majority of justices have already indicated that they may be inclined to uphold the government's authority.

The Court might even rule for the government without reaching the merits on the ground—advanced in the government's petition—that the case is not justiciable. I think that argument is also wrong, but it is undeniable that prior precedents carve out a relatively narrow role for the courts in immigration matters.

Yet even if the government wins the final round in the Supreme Court, the litigation challenging the Travel Ban should be regarded as a success.

For months, the Travel Ban was prevented from going into full effect. During that time, thousands of foreign nationals whom Trump sought to exclude were able to come here to start or continue their education, obtain needed medical care, reunite with family, and start new lives in a land whose bigoted leader stubbornly chooses not to requite their love for their new country. Each of these entries was a blow for justice and decency over stupid hatred.

Moreover, the initial victories moderated the Trump policy somewhat. The move from Travel Ban 1.0 to Ban 2.0 resulted in the removal of Iraqi nationals from the no-entry list—an important accommodation for the Iraqis who risked their lives to aid US troops.

Before promulgating Travel Ban 3.0, the government reverted to some semblance of normal intra-government consultation and review. To repeat, these steps should not suffice to legalize Ban 3.0, but the fact that we have come this far already counts as a substantial victory over Trump's effort to rule by diktat.

Perhaps most importantly, the Travel Ban solidified the accurate perception of the Trump administration as racist, dishonest, cruel, incompetent, and lawless. After Trump's surprise Electoral College victory, some people who did not support him during the campaign held out hope that perhaps his bark would prove worse than his bite, that faced with the task of governing, Trump would abandon demagoguery for statesmanship.

The Travel Ban demonstrated that such hopes were in vain. It combined all of Trump's worst characteristics.

Trump's own surrogate, Rudy Giuliani, admitted that the ban was an effort to disguise the Muslim ban as something else.

When Ban 1.0 was enjoined, Trump peevishly called the man who issued the ruling—an appointee of President George W. Bush who was unanimously confirmed by the Senate—a "so-called judge."

Confirming that attacks on the independent judiciary are not just a slip of the thumb by the Tweeter in Chief but administration policy, Attorney General Jeff Sessions later marveled that a judge "sitting on an island in the Pacific" had the power to invalidate Ban 2.0. He thereby disrespected not just the separation of powers but the entire state of Hawaii.

Meanwhile, the mismatch between the countries targeted by each version of the Travel Ban and national security is arresting.

Why wasn't Saudi Arabia, the source of most of the 9/11 hijackers, on any version of the list?

Why do the lists target nationals of the countries in question, even people who have not lived there for decades?

Why was Travel Ban 1.0 rushed into effect without input from the relevant professionals?

All of these flaws revealed that Trump cared more about exciting his political base than protecting the country from actual security threats.

If the Supreme Court allows Travel Ban 3.0 to remain in effect, Donald Trump will no doubt boast that he was right all along. But no one should be fooled. The Travel Ban saga makes clear that after a year in office, Trump remains every ounce the same vile and petty would-be tyrant that he appeared on the campaign trail.

Michael C. Dorf is the Robert S. Stevens professor of law at Cornell University. He blogs at DorfOnLaw.org .