Courts

Supreme Court Lifts Injunction On Travel Ban

Court votes 7-2 to authorize discrimination while lower courts continue to review the case.

By  
on

(Photo by Jack Taylor/Getty Images)

The Supreme Court just voted to
lift the injunction on Trump’s permanent travel ban.

This is Travel Ban 3.0, the one that represented the administration’s best crack and at constitutional bigotry, as opposed to its earlier attempts to push through anti-Muslim hate in a way that was facially unconstitutional. As of now, enforcement of Trump’s ban on six Muslim majority countries, plus North Korea and Venezuela to throw people off the scent, can go into effect.

The vote was 7-2, with the five conservatives picking up Justice Stephen Breyer and Justice Elena Kagan. Justices Ruth Bader Ginsburg and Sonia Sotomayor would have kept the injunction in place. The Court did not release an opinion along with its decision.

While the injunction is now lifted, lower courts on the 9th Circuit and the 4th Circuit continue to consider the merits of the case.

As I said when Travel Ban 3.0 was released, unlike the first two, this one is couched in reasons and backed with evidence. Not good reasons and not convincing evidence, but that is more of a policy question than a legal one.

Sponsored

The bigotry that is the clear intent of this ban isn’t written all over the face of this executive order, and that puts courts in a difficult position. Should they infer the bigotry into the document based on its two previous iterations and the voluminous backlog of Trump Tweets that speak to the order’s true intent? OR should they look at Travel Ban 3.0 as a novel approach to banning people based on their country of origin.

It would seem that the Court is all about looking at this thing as a new order, separate and apart from the orders and statements that preceded it.

Even taken on its own, the merits of this case are still difficult for the government. The lower courts will decide if the president has the authority to unilaterally ban people based, not on anything they did, but simply based on where they’re from, without an act of Congress. If you think that is simple and that Trump clearly has the authority, I’d simply asked you to reverse the streams and imagine a president unilaterally only allowing people to immigrate from a list of six Muslim majority countries, while turning away anybody born in Europe. You probably wouldn’t like that too much, you #MAGA jerkfaces. So presidential authority here isn’t all that clear.

In any event, the most troubling development is that we’ve seen today and last summer that John Roberts and Anthony Kennedy are pretty comfortable allowing the president to discriminate in the name of security. I guess supporting the next Korematsu is something these guys want on their judicial tombstones.

Supreme Court allows full enforcement of Trump travel ban while legal challenges continue [Washington Post]

Sponsored

Earlier:

Travel Ban 3.0: We’ve Finally Achieved A Patina Of Legalism To Cover The Bigotry

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

Topics

, , , , ,