The travel ban at the Supreme Court

Tehran Times - - INTERNATIONAL -

Trump cares a lot about win­ning, or at least the ap­pear­ance of it. So he was pre­dictably quick to sound off in triumph after the Supreme Court an­nounced on Mon­day morn­ing that in Oc­to­ber it would con­sider the le­gal­ity of his re­vised travel ban and will al­low the ban to take par­tial ef­fect in the mean­time. The jus­tices’ de­ci­sion, he said, was “a clear vic­tory for our na­tional se­cu­rity.” In re­al­ity, “vic­tory” for any­one in this case is far from clear.

Trump, who had called dur­ing the cam­paign for “a to­tal and com­plete shut­down of Mus­lims en­ter­ing the United States,” is­sued his first travel ban in Jan­uary, but it was quickly blocked by the courts.

A re­vised ver­sion, is­sued in March, barred visi­tors from six Mus­lim-ma­jor­ity coun­tries from en­ter­ing the United States for 90 days and sus­pended the refugee pro­gram for 120 days. Key parts of it were again struck down by two fed­eral ap­peals courts. One of the two courts, the United States Court of Ap­peals for the Fourth Cir­cuit, re­called Trump’s own in­cen­di­ary cam­paign state­ments in rul­ing that the or­der vi­o­lated the First Amend­ment’s ban on gov­ern­ment es­tab­lish­ment of re­li­gion and that it “drips with reli­gious in­tol­er­ance, an­i­mus and dis­crim­i­na­tion.”

On Mon­day, the jus­tices agreed to re­view both ap­pel­late de­ci­sions, but their un­signed opin­ion did not ad­dress the mer­its of those cases. They ruled that un­til they hear the case in early fall, the ban will ap­ply only to for­eign­ers with no con­nec­tions to Amer­ica and not to those “who have a cred­i­ble claim of a bona fide re­la­tion­ship” here.

Bona fide

What’s a “bona fide” re­la­tion­ship? It’s a good ques­tion, and one that will be lit­i­gated ag­gres­sively over the sum­mer. The court pro­vided gen­eral guide­lines — say, a fam­ily mem­ber of some­one liv­ing in the coun­try, a stu­dent ad­mit­ted to a univer­sity or a worker with an em­ploy­ment of­fer in hand. Relationships that ex­ist only to get around the ban are not ac­cept­able — for ex­am­ple, be­tween refugees and the im­mi­grant-rights groups that reach out to them as po­ten­tial clients.

That ap­proach did not sat­isfy Jus­tices Clarence Thomas, Sa­muel Al­ito and Neil Gor­such, who ar­gued in par­tial dis­sent that the “bona fide” stan­dard was “un­work­able” and will re­sult in a “flood of lit­i­ga­tion” in the lower fed­eral courts. The dis­senters would have al­lowed the ban to take ef­fect in its en­tirety.

All the le­gal jock­ey­ing shouldn’t ob­scure the fun­da­men­tal fool­ish­ness of the pol­icy it­self. De­spite Trump’s ground­less claim that the ban is nec­es­sary to pro­tect na­tional se­cu­rity, no one from the af­fected coun­tries has been re­spon­si­ble for a fatal ter­ror at­tack in the United States in the past two decades. This in­cludes the past five months, dur­ing which the White House has re­peat­edly in­sisted on the ban’s im­por­tance even as it has shown lit­tle ur­gency in fil­ing its ap­peals.

Now the ad­min­is­tra­tion has the sum­mer to conduct its vet­ting re­view, which was the orig­i­nal ra­tio­nale for the travel ban — the gov­ern­ment needed time to “fig­ure out what is go­ing on,” as Trump once put it. By Oc­to­ber, the ban will have ex­pired and the re­view should be com­plete. And by then Trump might con­ceiv­ably have de­vel­oped a fac­tual ba­sis for a pol­icy that con­tin­ues to bar peo­ple from cer­tain coun­tries, which would trig­ger a whole new round of lit­i­ga­tion.

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