The Supreme Court may have signalled Monday how it could rule on the constitutionality of key parts of President Donald Trump’s controversial travel ban, legal experts say — and it bodes well for Trump.
In ordering that most of the injunctions on the executive order be lifted, the court distinguished between foreign nationals “who have a credible claim of a bona fide” family tie to the United States, and those who do not.
And in a key sentence when writing on an injunction related to the ban’s 120-day suspension of all refugee entry, the court wrote that “when it comes to refugees who lack any such connection to the United States, for the reasons we have set out, the balance tips in favour of the government’s compelling need to provide for the nation’s security.”
Harvard law professor and famed attorney Alan Dershowitz told Business Insider that the court’s sentence on refugees was critical in the ruling.
“That’s the key,” he said.
Dershowitz, who believes Trump’s order to be constitutional, said it is now increasingly likely the court will uphold key sections of the ban.
“I do think that the court’s decision to allow the ban to go forward with regard to individuals with no connections to the United States suggests they will uphold much of the ban, the most important parts of the ban,” he said. “And, this is what I’ve been saying for months now — that the court will distinguish between people with connections to the United States and people who don’t have connections to the United States.”
The executive order bars travel to the US by citizens from Libya, Iran, Yemen, Syria, Somalia, and Sudan. Green-card holders are exempt from the ban.
The order’s bans on travel from those countries, scheduled to last 90 days, and for all refugees, scheduled to last 120 days, are now allowed to take place with the court’s exceptions. The White House has claimed the temporary ban is needed so it can review its vetting process. It is possible the bans will be no longer active by the time the court is scheduled to hear the case. The court asked both parties to address whether the case would be moot by then.
On the campaign trail, Trump repeatedly called for a ban on entry to the US by all Muslims, and opponents of the ban have used Trump’s past statements to argue that the ban is intended to unconstitutionally target Muslims.
A previous version of the ban also barred citizens from Iraq and did not include exceptions for those with green cards.
“It’s a complex and unusual order in a lot of ways,” Deborah Pearlstein, a law professor at Yeshiva University who served in President Bill Clinton’s administration, said in an email. “The only thing that’s clear: Neither side of this case should come away feeling like they have any certain path to victory.”
Key for Pearlstein is whether the ban is still in effect when the court hears arguments.
“The question everyone should be asking — how much should we read this partial stay as a ruling on the merits of whether the ban is actually unconstitutional?” she wrote. “This sets up big test of presidential power — but only if [the] administration decides to make its ban permanent between now and September. The court just deftly put the ball back in the president’s court.”
Trump celebrated the high court’s order, saying in a statement that the decision was a “clear victory for our national security” that would allow the travel suspension to “become largely effective.”
“As President, I cannot allow people into our country who want to do us harm,” he said. “I want people who can love the United States and all of its citizens, and who will be hardworking and productive.”
“I am also particularly gratified that the Supreme Court’s decision was 9-0,” he added.
Democrats were mostly quiet in regards to the ruling immediately following the court’s order.
Sen. Tim Kaine of Virginia said in a statement that he was “disappointed” by the decision, but was “encouraged that the justices maintained the ability of travellers from the affected countries to proceed so long as they have family or other connections here.”
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