Half a dozen challenges to the Trump executive order have already been filed. Inevitably, they will end at the Supreme Court. Will it survive?
What happens next for the lawsuits challenging the Trump travel ban?
Ultimately, it seems certain that one or more of the pending cases—four court orders have been issued so far—will end up at the Supreme Court, which will have before it several constitutional and statutory questions.
However, many things could happen before then, with consequences not only for the 200 million people currently prohibited entry to the United States, but for the next four years of how the judiciary and presidency will relate to one another on vital questions of democracy and civil rights.
The two most important elements of the EO, as explained in a viral post by conservative analyst Benjamin Wittes, are its malevolence and its incompetence. First, as Wittes demonstrates, the EO cannot possibly be designed to “prevent terror and keep our country safe,” because it is both overbroad (all people from seven countries, including millions of Christians) and under-inclusive (leading exporters of terrorism, i.e., Saudi Arabia, Egypt, and Pakistan, were not included). If preventing terror were the objective, these blanket travel bans would not be the means. Thus, Wittes argues, it must be seen as “elevating the symbolic politics of bashing Islam”—which, indeed, it has done quite well.
As Wittes also observed, however, the EO was drafted in a rushed and incompetent manner, without vetting from experts (least of all the Department of Homeland Security), apparently by Trump advisors Stephen Miller, Steve Bannon, and Attorney General-designate Jeff Sessions, none of whom have national security experience. As a result, it is filled with ambiguity and errors, using outdated terminology, lacking guidance for implementation, and leaving several key questions—What about asylees? What benefits are covered?—unanswered.
Unsurprisingly, this lack of clarity has led to wide disparities in enforcement. What’s allowed in Miami has been banned in New York. What judges have barred in Boston is still OK in Los Angeles. And in Washington, D.C., Customs and Border Protection (CBP) officials are using their “discretion” to basically ignore a court order.
In response to the widespread chaos and vocal protests, the Trump administration has already backpedaled on the EO, notwithstanding its typically counterfactual assertions that no one is really protesting anyway. Already, green card holders (formally known as those with “lawful permanent residence”) have apparently been exempted, although no formal document has yet done so. Trump’s own justice department has admitted that it has no clear idea what the EO actually requires. And according to recent reports, most visitors are now being let through, albeit with enhanced screening that can last for a number of hours.
If that pattern continues, there may not be much of a case left to pursue. While organizations like the ACLU are the real drivers of the litigation, ultimately they still require actual plaintiffs who have suffered actual harm. (In a nice bit of optics, the New York case is formally known as Hameed Darweesh v. Donald Trump.) If only two people remain in temporary detention—which, at press time, is what lawyers at JFK told The Daily Beast—the litigation could wither for lack of enforcement.
At the same time, additional challenges continue to be filed. Just today, as Katie Zavadski reported, a Muslim organization filed a First Amendment claim against the ban, and a further challenge was filed on behalf of two brothers from Yemen who had been granted immediate-relative immigrant visas (their father is a U.S. citizen) but who were sent home from Dulles airport (PDF). Given that they’re stuck in the Addis Ababa airport at present, they certainly have standing to sue.
In the near term, the plurality of challenges and venues will lead to a patchwork of legal results, as we have already seen. Different judges will continue to issue different temporary orders while the cases move through the system. The disorder of the last 72 hours will continue, but that, in itself, is not unusual.
Most likely, as the cases wend their way up, district and circuit courts will place stays on enforcement while the litigation proceeds. It’s also possible that some of the cases will be expedited because they are habeas corpus claims, meaning that the government has a person in physical custody; those are sometimes expedited as well. Indeed, it’s often efficient for courts to defer judgment on the merits pending the outcome of similar cases further up the system.
This, too, happens all the time. For example, in the same-sex marriage litigation which led to Obergefell and the campaign-finance litigation which led to Citizens United, there were, in fact, multiple cases filed by multiple organizations in multiple circuits across the country. Activist lawyers competed for the best cases: the most appealing plaintiffs, the friendliest judges and courts.
Sometimes the “best” cases are the ones that make it to the Supreme Court, and sometimes they aren’t. To choose a recent example, conservative activists wanted their recent challenge to Obamacare to be on behalf of the Little Sisters of the Poor Home for the Aged, a nursing home run by an order of nuns. Talk about the perfect plaintiff! But because that case was consolidated with others, the named plaintiff ended up being David Zubik, an archbishop from Pittsburgh.
Here, it seems likely that the various cases will eventually be consolidated into one, and that the Supreme Court will have to rule on the merits. Probably that process will take several months, but it’s likely to be decided this term or next term, due to the intense scrutiny of the policy. By way of comparison, the right-wing challenges to the Obama administration’s immigration order took 18 months from the initial filings to the (inconclusive) Supreme Court judgment.
When they do so, the Court will have to address both constitutional and statutory challenges.
The Dulles case, a petition for habeas corpus relief entitled Aziz v. Trump, is representative. The Aziz brothers allege violations of the Fifth Amendment, since they were denied due process and denied access to an attorney. Indeed, according to their petition, they were handcuffed, lied to, forced to sign papers they didn’t understand, and sent back to Ethiopia, where their flight had originated. They also allege violations of the First Amendment (the EO is biased against Islam) and Fifth Amendment (it discriminates on the basis of religion).
The statutory claims, though, are even stronger. The petition alleges two major violations of the Immigration and Nationality Act because the EO denies entry to people possessing valid documents, and because the EO discriminates on the basis of religion. Both are clear violations of the Act, and the Trump EO’s claim that national security is at stake does not constitute a valid exception. (In a nice twist, the petition also alleges a violation of the Religious Freedom Restoration Act, which is currently the law of choice for conservatives seeking to discriminate against LGBT people.)
These multiple causes of action will give the Supreme Court multiple bases for whatever opinion it reaches. On the merits, the violations of the statute seem clear, and the Court could decide purely on that basis, declining to address the contentious constitutional issues. Or the Court could take a more expansive position, given the threats to civil liberties that will be emerging in the coming months.
In particular, it’s hard to see the Court’s judicial moderates—especially Chief Justice Roberts, who has evinced a mission of restoring legitimacy to the Court—going along with it. And if that’s true, the travel ban would fail by a vote of 6 to 2. But it’s impossible to predict.
It’s also unknown how the travel ban will impact the debate over Trump’s Supreme Court nominee, to be named in true reality-television fashion on live television Tuesday night. Normally, justices are quizzed primarily on hot-button social issues like abortion. But with three arch-conservatives in the running—William Pryor, Thomas Hardiman, and Neil Gorsuch—their views on civil liberties may now become more important.
Of the three, Pryor has the most significant, and extreme, record: He called the Miranda case, which gave us the familiar “you have the right to remain silent” warning, one of the “two worst examples of judicial activism.” Hardiman is no civil libertarian either, having written opinions upholding the strip-searching of anyone arrested, even for minor traffic offenses, and rejecting a constitutional right to record police conduct. Gorsuch does not have a significant record on the issue.
Whoever is sitting on the bench, though, when these cases reach the Supreme Court, will have a far-reaching impact on the clash between Trump’s nationalist populism and the values of equality that have for so long defined the American experiment. Which will win remains, like so much else, profoundly unknown.