This afternoon, in a pair of short orders, the Supreme Court ruled that the latest version of the so-called “travel ban” can go into effect. Its ruling effectively lifted nationwide injunctions put in place in October by federal district court judges in Hawaii and Maryland. Both of those lower court decisions were seriously flawed. Here’s what I wrote when the rulings were issued:
One gets the feeling that at least some federal judges are in the grips of the belief that Trump is a unique threat and that existing law simply doesn’t check him enough. So they stretch. They reach beyond the maximum limits of their existing power and create new precedents that not only exceed their authority but will almost certainly exacerbate the ongoing problem of judicial supremacy, of viewing the judicial branch as the arbiters of what’s prudent and wise, not what’s lawful and constitutional.
The governing statute granted President Trump immense power
Whenever the President finds that 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 nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
In previous cases, the lower courts effectively added to the statute, essentially holding that the president had to prove that his finding met the judge’s arbitrary standards of policy prudence. Other courts held that the presidential finding could in essence be invalidated by Trump’s “anti-Muslim” rhetoric, regardless of the text of the order. Both lines of reasoning represented dangerous expansions of judicial authority over Congress, which wrote the governing statute, and the President charged with enforcing it.
The current Supreme Court ruling deals a blow to judicial efforts to stop Trump’s travel ban, but it doesn’t end the case. The Court is simply allowing the ban to be enforced while the courts of appeal in the Ninth and Fourth Circuits issue their rulings on the legality of the bans. The Supreme Court is waiting to render its final judgment until appeals from either circuit are properly presented to the court.
So this Trump victory is temporary, but it’s hardly meaningless. Not only does it allow the Trump administration to enforce its order, it also provides a hint as to the Court’s leanings in the case. After all, to obtain an injunction, a plaintiff has to demonstrate, among other things, a likelihood of success on the merits of their underlying claim. The Court’s decision to stay the Hawaii and Maryland injunctions may well indicate that the Court has a decisively different view of the merits. Time will tell, but for now Trump wins a round.