Supreme Court Reinstates Part Of Trump's Travel Ban, Agrees To Hear Case

Jun 26, 2017
Originally published on June 26, 2017 4:55 pm
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The U.S. Supreme Court today agreed to review the Trump administration's travel ban and allowed part of the ban to take effect. The court's decision sets the stage for a major ruling on the breadth of presidential power. President Trump immediately hailed the court's action as a victory. The justices said they would hear arguments in October on the revised travel order which was issued in March. It temporarily bars people from six mainly Muslim countries from entering the U.S. Five district courts and two federal appeals courts had blocked the president's order from going into effect. NPR Legal Affairs Correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: In an unsigned opinion, the court rejected the Trump administration's argument that it should be allowed to immediately ban everyone from the six countries - Libya, Sudan, Somalia, Syria, Iran and Yemen. Thus the court said the government is not free to ban visas for a mother visiting her son or a worker offered a job or a student admitted to a university, to cite just a few examples. That was the bad news for the Trump administration.

The good news was that the court said individuals from the designated countries who have no such formal or documented relationship may be excluded for the 90 days specified in the Trump executive order. The court's unsigned decision noted that the interest in preserving national security is, quote, "an urgent objective of the highest order and to prevent the government from pursuing that objective against foreign nationals unconnected to the U.S. would appreciably injure that interest."

Six justices, including Chief Justice Roberts, Justice Kennedy and the court's four liberal justices, signed the opinion in full. The court's three most conservative justices including its newest member, Justice Gorsuch, and Justices Alito and Thomas said they would have revived the Trump executive order in its entirety. Justice Thomas writing for the three said the government is likely to win its case in the end anyway and that today's compromise measure would only spur a flood of litigation.

Reaction to the decision fell largely into the category of a glass viewed as half full or half empty. Amy Jeffress served as the national security counselor for the attorney general during the Obama administration.

AMY JEFFRESS: It's definitely a split-the-baby decision. This is likely not a good sign for the people who oppose the executive order.

TOTENBERG: Josh Blackman, a generally conservative professor at South Texas College of Law in Houston, agreed.

JOSH BLACKMAN: This was at bottom a victory I think for President Trump.

TOTENBERG: But others saw the decision as a practical loss for the Trump administration. Lucas Guttentag served as counselor to the secretary of homeland security in the Obama administration.

LUCAS GUTTENTAG: It's correct that the order does not allow continued travel for people who do not have ties to the United States. But under the immigration system, most people traveling to the United States do have those ties.

TOTENBERG: There were other reactions, too. John Bellinger, who served as legal adviser for the National Security Council and the State Department in the George W. Bush administration, said he was worried that the revival of the ban would just lead to more litigation and chaos.

JOHN BELLINGER: I was surprised that six justices agreed that the U.S. government had a strong interest in the travel ban.

TOTENBERG: That said, the court's action today leaves the justices a lot of wiggle room. By the time the court hears arguments in October, the administration has said it expects to have concluded all the measures it laid out to improve the screening system for those entering the U.S. from the six countries. ACLU legal director David Cole says he cannot envision the court ultimately endorsing the Trump administration's actions.

DAVID COLE: In order for the court to rule for President Trump, they would essentially have to blindly defer to the president and close their eyes to what the world knows, which is that the president sought to put in place a Muslim ban.

TOTENBERG: On the other hand, the delay in the case could give the Trump administration enough time to declare victory and leave the field. As Professor Blackman puts it...

BLACKMAN: If this is implemented in a non-chaotic fashion, the policy can run its course for 90 days. And come October, the government could even say there is no need to hear this case now; we can have it dismissed.

TOTENBERG: Indeed the court has added a question for the October argument, one not addressed by the lower courts - whether the case is moot. Nina Totenberg, NPR News, Washington.

SHAPIRO: And Nina will have more about the final session of the Supreme Court term tomorrow morning. Listen for that and much more as you begin your day with MORNING EDITION. Transcript provided by NPR, Copyright NPR.