Should the Trump administration be permitted to ban foreign nationals originating from six majority-Muslim countries from entering the United States? Several things happened on Monday to indicate that the Supreme Court is far more receptive to the administration's arguments than a number of lower courts have been: It agreed to hear the case in the fall. It partially lifted the injunction against its implementation in the meantime, reversing the actions of lower federal courts that had put the policy completely on hold. And three of the court's conservative justices (Clarence Thomas, Samuel Alito, and Neil Gorsuch) wrote a dissent to the unsigned opinion stating that they would have supported lifting the injunction without limitation.
On the other side are those very limitations on the lifting of the injunction, which restrict the ban's implementation to those foreign nationals lacking strong family or institutional ties to the United States. If that is where the center of gravity resides on the court, the ban may ultimately survive, albeit in significantly curtailed form.
Still, these developments are a victory for the Trump administration, which until now had seen its policy entirely blocked.
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And that's a good thing — not because the travel ban is wise or necessary. It isn't. It's both foolish and unnecessary. But the role of the federal appeals courts in the American system of government isn't to act as the ultimate arbiter of moral Right and Wrong, or to overrule the (perhaps startlingly stupid) judgments of those elected to run the government, or to change the rules of the game because Donald Trump happens to be the president. The role of the federal appeals courts (and especially the Supreme Court) is to decide on the constitutionality of laws and executive branch orders and regulations — and the Trump administration's executive order restricting immigration from six majority-Muslim countries for reasons tied to concerns over national security clearly and obviously falls under the president's powers as enumerated by the Constitution.
That doesn't mean the president has complete freedom to do anything he wants in this area. If, for example, Trump had attempted to base the ban on religion rather than national origin, restricting entry to Muslims from every country in the world, he would have opened himself up to the charge that he was laying the groundwork for treating American citizens who happen to be Muslim as a uniquely threatening class. The case for treating this as an unconstitutional form of religious discrimination would be very powerful.
But the current version of the travel ban does nothing of the sort. The original version, by including lawful permanent residents of the United States (green-card holders) from seven majority-Muslim nations, leaned somewhat further in the direction of a discriminatory restriction on Muslims as such. But not even this first iteration of the order sought to ban entry from the five countries in the world with the largest Muslim populations — Indonesia, Pakistan, India, Bangladesh, and Nigeria. The combined Muslim population of those five countries amounts to more than 842 million people, which is nearly half of all the world's Muslims — all of whom would have been unaffected even by the more draconian version of the travel ban. (By comparison, the six countries covered by the second travel ban are home to approximately 170 million out of the world's roughly 1.8 billion Muslims.)
If Trump's aim is to treat Islam as a uniquely dangerous religion, both of his travel bans have been very poorly designed indeed.
Should the travel ban be allowed to stand as written, as the court's most conservative justices appear ready to permit? Or should it be restricted along the lines temporarily endorsed on Monday by the other six justices? I personally incline toward the latter position, though I consider this less important than that the majority permit the ban to stand in some form — and that its opinion strongly reprimand the lower courts that have ruled against the ban on the flimsiest of legal and constitutional grounds.
No, presidential tweets (however obnoxious or even bigoted) should not override the specific provisions of an executive order in determining its constitutionality. And no, foreign nationals living abroad cannot claim rights violations under the U.S. Constitution — or have these supposed violations used as evidence of a hardship or injury suffered by unrelated American citizens who are merely adherents of the same religious group.
Once again, the Trump administration travel ban is foolish and unnecessary. But that doesn't mean it is unconstitutional. At a moment when the rule of law in the United States is under an unusual degree of strain, the Supreme Court needs to act with greater wisdom and restraint than some of the nation's lower courts have done.
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