Feldman: SCOTUS Trying To “Wiggle Out” Of Ruling On Trump’s Travel Ban

Via Noah Feldman for Bloomberg

The Supreme Court agrees to hear the case in the fall, but looks to be wiggling its way out of a politically charged ruling.

The U.S. Supreme Court has left in place most of the judicial freeze on President Donald Trump’s controversial travel ban from six majority Muslim countries. The justices announced Monday that they will hear arguments in the fall and decide the issue after that. That’s a win for the ban’s opponents.

But there’s also reason to be wary of what’s coming. Three conservative justices wrote separately to say that they would have reinstated the travel ban altogether, signaling that they will vote to uphold the ban when the time comes. And the per curiam opinion(Latin for a decision issued without signatures) joined in full by the other six justices reflects a clear desire for compromise — which in turn could mean that there might not be five votes to strike down the ban altogether when and if the court must ultimately rule on whether the ban is lawful.

The court’s opinion was scrupulous about trying to avoid any comment on how the case would turn out, with regard to whether the parties challenging the travel ban have causeto do so or on the merits of their arguments. Two appeals courts have ruled against the ban, one by saying that anti-Muslim discrimination was the guiding force behind the executive order, the other by saying Trump did not provide a valid national security reason for it. The Supreme Court on Monday focused on the extent of the stay put in place by the lower courts — and that’s where the compromise came.

The lower courts dealt with the executive order by freezing its operation altogether. The justices took a different tack.

They kept in place the ban as it relates to citizens of the six countries “who have a credible claim of a bona fide relationship with a person or entity in the United States.” In detail, the court explained that meant the travel ban can’t be applied to foreigners seeking entry who have a “close familial relationship” with people inside the U.S.

And it can’t be applied to foreigners who have been admitted to U.S. universities, offered jobs with U.S. corporations or invited to speak by U.S. groups. The court went out of its way to clarify that such relationships to entities must be “formal, documented, and formed in the ordinary course, rather than for the purpose of evading” the executive order.

The court said specifically that nonprofit immigration advocacy organizations “may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.”

But the justices lifted the freeze on the travel ban with respect to people from the six majority Muslim countries who are outside the U.S. and have no U.S. connections. The government’s interest in exclusion and the president’s power to do so, the court said, “are undoubtedly at their peak when there is no tie between the foreign national and the United States.”

In practice, the court’s ruling means Trump’s travel ban won’t be able to affect the great majority of foreign nationals who were actually trying to get to the U.S. from the six countries. It was already extremely difficult to get a visa from these countries unless you had family ties or a specific invitation.

The State Department under President Barack Obama wasn’t in the habit of giving out tourist visas to applicants from Iran, Iraq, Libya, Somalia, Sudan, Syria or Yemen. And the vetting process that would accompany a visa request from these countries would in any case have made the granting of such visas unlikely to the point of impossibility.

Given the practical reality that the court’s new distinction doesn’t give the Trump administration much in practical terms, it’s worth asking why the justices bothered to create it.

The best answer is that the court, especially Chief Justice John Roberts and Justice Anthony Kennedy, didn’t want the court’s decision to be read as a partisan rejection of the Trump administration, the way the lower court opinions often did.

Put another way, the point of the modest compromise is to give Trump the chance to say that the court gave him a partial victory. This might insulate the court from the kind of attacks that Trump has made on the lower courts.

Justice Clarence Thomas’s partial dissent, joined by Justices Samuel Alito and Neil Gorsuch, tried to spin the per curiam opinion as a win for Trump. Thomas wrote that the court’s decision included an “implicit conclusion that the Government has made a strong showing that it is likely to succeed on the merits — that is, that the judgments below will be reversed.”

That’s overstating the case quite a bit. Thomas’s logic was that, when a party asks the court to hear a case and to stay a lower court decision in the meantime, it ordinarily must convince the justices that there is a “significant possibility” of a reversal.

But the circumstances here are different, because the Trump administration is asking for a stay of another stay already issued by the lower court. And in reaching its ruling, the Supreme Court went out of its way not to say what was likely to happen. Instead the opinion said that “crafting a preliminary injunction is an exercise of discretion and judgment.” And it said its goal was “not to conclusively determine the rights of the parties, but to balance the equities as the litigation moves forward.”

So what will happen in the fall?

The justices would really like to avoid ruling on the travel ban altogether. The court ordered the parties to file briefs on the question of whether Section 2(c) of the executive order — the 90 day suspension of all entrants from the six countries — was already moot because the 90 days have passed. That was a hint that the court would like to make the case go away.

The parties are unlikely to be helpful, because both Trump and his opponents want the issue decided. What we now know is that the court’s three most conservative justices will vote to uphold the ban, and that Roberts and Kennedy favor some sort of a compromise.

The upshot is that the case may turn out to be closer than I at least imagined when the president tweeted about the issue in early June. The less attention to the case, the better Trump’s odds of winning — but reduced attention doesn’t seem very likely on this issue in this administration.