InternationalVOLUME 14 ISSUE # 22

The travel ban shows what happens when the Supreme Court trusts Trump

A year ago, the Supreme Court upheld, by a 5-4 vote, President Trump’s imposition of a ban on travel from several predominantly Muslim countries. The court’s decision was gravely disappointing the day it was handed down. A year later, it looks even worse — particularly because it rested on three premises pushed by Trump Administration lawyers that have proven thoroughly unfounded.


The false premises should act as a cautionary tale: This term’s Supreme Court case on whether to allow a citizenship question on the 2020 census was similarly argued on what may turn out to be false premises. In the travel ban case, first, the more conservative justices emphasized its temporary nature. The decision acknowledged that the provision of federal immigration law relied on by President Trump refers to a president’s authority to “suspend the entry” of foreigners to the United States; it further acknowledged that the word “suspend” means something temporary rather than permanent. Moreover, the majority opinion emphasized that, according to the same federal law, the president could maintain the ban only “for such period as he shall deem necessary.” The ban was thus upheld as something merely temporary — as required by law.


Yet here we are, a year since the court upheld Mr. Trump’s third version of the ban, almost two years since that version took effect and nearly 29 months since Mr. Trump issued the ban in its original form. The ban upheld by the court remains in full effect, and there’s not a whisper from the White House that it will be repealed. What the court’s majority accepted as temporary looks increasingly permanent. This was exactly the risk that a bipartisan group of former top officials — like William Webster, Jack Danforth, Christie Whitman and others — warned.


Second, the opinion emphasized a year ago that, even with the ban in place, there was a requirement for periodic review of the countries subject to it. The majority’s opinion stressed that the presidential proclamation carrying out the ban requires the Department of Homeland Security to assess on a continuing basis whether entry restrictions against particular countries should be altered — and to provide a report to the president every 180 days. Indeed, the majority justices seemed quite taken by the convenient fact that, just 15 days before the case was argued at the Supreme Court, the White House had removed Chad from the list of countries subject to the ban as a result of the 180-day review.

Well, it’s been 14 months since Chad was removed from a ban to which it never should’ve been subject in the first place, and no other country has shared its good fortune. Indeed, not only has no country come off the list since the court upheld the ban, but there’s been no public indication we have found that the required 180-day review is even occurring. If it is, it’s happening entirely in secret — and yielding no alterations. The regular reviews emphasized a year ago by the court’s majority now look even more like something more fictional than a robust evaluation process.


Third, the court’s decision noted that, even while the ban remained in place and even for countries still subject to it, “case-by-case waivers” were available for individuals to allow them to travel to the United States if they could show “undue hardship.” The chief justice’s majority opinion emphasized that the availability of waivers made Mr. Trump’s travel ban more similar to actions of earlier presidents. It also underscored the direction given to consular officers to assess waiver applications while addressing any public safety concerns and broader implications for the national interest.


The waiver program looked like a sham a year ago, as a consular officer made clear in a sworn affidavit in another matter and as Justice Stephen Breyer emphasized in his powerful dissent. It looks like even more of a sham now. According to the Trump administration’s own data, between December 2017 and May 2018 approximately 98 percent of those who applied for a visa to travel to the United States did not receive a waiver. More recent reporting still shows only 6 percent of those subject to the travel ban receiving waivers. What’s more, the process even for seeking a waiver has remained opaque to the point of being inscrutable. So have the criteria by which consular officers evaluate the waiver applications they do receive. The waiver process held up by the court’s majority a year ago continues to let down applicants today.


Reasonable people can differ about whether these three points were obvious to the court a year ago, and the court’s defenders are right to suggest that it doesn’t usually second-guess presidential determinations or try to foresee the future. But the point isn’t just that the court’s decision a year ago has aged poorly — it’s that key foundations for that decision have crumbled. The court’s majority embraced Mr. Trump’s representations that his travel ban was temporary, subject to regular reassessment and softened by the availability of waivers. Those premises looked arguably faulty then but are now downright far-fetched.


Today, the court prepares to issue its biggest decision since the travel ban, on the 2020 census case. Yet again, Mr. Trump’s lawyers have offered the court premises that look like pretexts. The claims of a need to bolster Voting Rights Act enforcement are belied by the citizenship question’s nakedly political origins and by the government’s own assessment that adding a citizenship question would hinder Voting Rights Act enforcement. It’s now up to the justices whether to indulge these premises. Doing so would be wrong today — and would look even worse in the future.