Nothing the Supreme Court has done since it first saw President Trump's travel ban this summer should give the challengers of the current ban any optimism that version 3.0 will eventually be banned, materially , by the judges.
Monday's brief orders, which allow the ban to go into full effect while awaiting the resolution of two cases from Maryland and Hawaii, only reinforce the likelihood that those who expect a strong judicial rejection against executive authority will Disappoint when Supreme Court President John Roberts and company reach their final decision on the merits of the cases.
It is possible, even probable, that the lower federal appeals courts now reviewing the ban will continue to remove portions of it, citing evidence that is embarrassing, or worse, for administration.
These arguments will be analyzed this week in two oral arguments on each coast. On Wednesday, in the case of Hawaii, the Ninth Circuit Court of Appeals of the US. UU It will evaluate the ban and then, on Friday, in the case of Maryland, the 4th Circuit Court of Appeals of the US. UU You will also listen to lawyers from all sides of the fight.
It will be crucial for those who challenge the prohibition to evoke during these arguments how weak the factual justifications for the current prohibition are. There are still parts of the current version of the ban that are largely unexplainable, except as unconstitutional manifestations of the racial or religious discrimination that is at the heart of many of this administration's policies. (Trump once again undermined the legal position of his own administration in the case of the travel ban when he retweeted racist and anti-Muslim videos last week).
The only way that the contenders can now win in the Supreme Court, it seems to me, is if the "registration" below is still so devoid of sensible justifications from the government that the judges are forced to conclude that the discrimination is still the main objective here. A difficult sale but not impossible.
The timing of those hearings was what caused the Supreme Court to repeat Monday with two simple and clear messages. For the Trump administration, the judges said: go ahead and enforce the current ban, in its entirety. Now it has a presumption of legality that the challengers will have to overcome, again, as long as they reach our court. And to the judges in the ninth and fourth circuits, the judges said: go ahead and finish your work quickly, and give us your decisions in writing soon, so that we can resolve this case on the merits as soon as possible. None of those messages can sound reassuring to the good people who challenge the first amendment ban or any other legal reason.
But both messages from the Court should sound like a victory for Trump officials who have reformed the travel ban twice since the first version was released, to such chaos, cruelty and lack of love in January. For them, the political calculation in the last nine months has surely traced the legal one; The less expansive the prohibition has become, the more bureaucratic research it has adopted, the more deferential the courts have been in evaluating it. And that dynamic between the judicial and executive branches is not new or exclusive of the machinations of the Trump administration.
" In the end we will see a cautious ruling that tells us that the Constitution and the federal statutes grant Trump the authority to do what he has done in the name of national security, in any case. " [1
We will never know if or to what extent the Court would have supported the first travel ban, the unconstitutional patented, which helped shape the narrative we have today of an administration run by amateur lawyers and hack bureaucrats. I suppose that Judge Anthony Kennedy, at least among the Conservatives of the Court, would have opposed such an openly discriminatory prohibition, such an absolute lack of the kind of objective justifications that the administration has dismantled to defend the current prohibition.
But that prohibition is not this prohibition. That's good news for the countless people who were subject to the first ban but not the current one. It's good news for Trump officials who will undoubtedly turn the next Supreme Court decision into a more vindication than it will be in reality. But it's bad news, terrible news, for all the people, all the innocent men, women and children that the Trump administration still wants to leave behind because of where they were born, or the color of their skin, or the God they belong to. pray.