Supreme Court Returns Sanity to Debate Over Travel Ban

In what can only be seen as a big win for the Trump administration, the unanimous Supreme Court both took up the travel-ban cases and allowed most of the relevant executive order to go into effect. There may be lower-court litigation in coming months over the meaning of the “bona fide relationship” to an American person or entity that exempts someone from the travel restriction. Given that the second executive order on this subject, unlike the first, specifically exempted greencard holders, students, family members, those with established business ties, and others, is there even anybody who benefits from this carve-out who wasn’t already exempt from the travel ban?

At the end of the day, and regardless of the policy merits of the executive order—which doesn’t seem well-crafted to address security concerns, but I, like the judiciary, lack access to classified information—the Supreme Court doesn’t seem likely to be swayed by the idiosyncratic atmospherics (campaign speeches, tweets, and all) and will instead focus on a close textual reading of the laws at issue. It seems that all the justices want to return to the “presumption of regularity” that applies to presidential decisions on national security. As Justice Thomas, joined by Justices Alito and Gorsuch, wrote in partial concurrence, the decision to stay the lower courts’ rulings—to allow most of the travel ban to go into effect—is an implicit recognition that the government is likely to succeed on the merits.

Of course, the case might not get to the merits at all, because of standing and mootness concerns that would throw out the lawsuits altogether—or because the travel ban will expire before any final ruling. We shall see soon enough, because the Court has scheduled expedited argument for when it returns from its summer recess the first week of October.