The Supreme Spin: How The Travel Ban Victory Became A Victory For Critics

Supreme CourtThere was a curious shift that occurred in the 24 hours leading up to the decision of the Supreme Court in  Trump v. Hawaii.  News organizations repeatedly emphasized that the travel ban under consideration was, in the words of CNN, “very different” from the one first issued by the Trump Administration and the current order was much narrower.  It is certainly true that the current travel ban has a slightly different array of countries and a much enhanced record.  Moreover, I was a critic of the poorly drafted and poorly executed original ban. However, it is not true that those differences carried the day with the Court. The two threshold issues remained that same and, until the loss yesterday, challengers maintained that the legal issues had not materially changed.

There were two threshold issues that ran throughout the travel orders and the resulting litigation. First, there was the argument that federal law outright bans any order based on national origin. I previously wrote that this argument was flawed.  In 1965 the Congress enacted the Immigration and Nationality Act of 1965. That law was designed to end the quota system given numerical preference to certain European countries. The operative provision states “no person could be “discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth or place of residence.” Congress exempted Cuban refugees but otherwise stated that no discrimination based on national or place of residence would be tolerated. However, that law does not apply to refugees and other presidents have barred entry based on national origin.  Nevertheless, this was put forward by commentators as a threshold and determinative argument. It was correctly rejected by the majority of the Court.

Second, the lower courts put considerable weight on President Trump’s campaign statements and tweets.  There is no question that President Trump made the defense of these orders more difficult with his controversial tweets, including the recent retweeting of controversial videos from an extremist group in England. However, the materiality of these statements was always highly questionable. Agency findings are normally accorded deference by courts, which are bound not to substitute their judgment for policy or political choices.  That is precisely what the majority did.  They went out of their way to note that they do not endorse these statements but rather the statements are not determinative over the traditional record in such cases.

While critics correctly insisted that they succeeded in forcing multiple rewrites, they also helped create damaging precedent for future challenges.  Despite the incendiary language of Trump, the inherent authority of the President and deference to these agencies still controlled.  The original ban covered seven countries while the third ban covered eight (later reduced to seven). There was a needed change to address green card holders and other obvious flaws in the original order. However, the final decision was based on the same grounds as advanced in the first round.

Those two threshold questions had not changed with the different generations of the travel orders and the result would likely have been the same if either of the two prior rounds made it to the Court.  It certainly helped to have the better record in this case and the rollout of the original order was dreadful. However, saying that the changes in the orders was the reason for this outcome is a Supreme spin.


67 thoughts on “The Supreme Spin: How The Travel Ban Victory Became A Victory For Critics”

  1. The original travel ban was for 90 days so the administration could get the extreme vetting sorted out. It has been months and the ban has been in effect in spite of court orders for a hold on its implementation. You’d think that the extreme vetting would now be in place and there would be no need for the ban. The court rather conveniently dismissed the details. Congress said a ban was ok only if there was a national security reason; no national security reason was given. The President’s spoken words and tweets that indicated a clear racist reason were ignored. I no longer have faith in the Supreme Court’s ability to read or reason

  2. The Supreme Court got a lot of criticism today and now the focus is on the next appointee by the President. A Japanese American might be in order.

  3. What would it mean. “Being replaced by a newer better larger whatever agency.”

  4. So after checking all the resources I find that Hawaii still has a record of zero for immigrants. What WAS their beef all about Alfie?? What would it mean. Hard to say if the Dems won it would mean their SS and Geheime Statz Poliezei was back in business with an all new cast.

  5. So after checking all the resources I find that Hawaii still has a record of zero for immigrants. What WAS their beef all about Alfie??

    1. 21st century retired professor gone senile. Since when are foreigners to be considered ‘imprisoned’ by being debarred from entering the United States, where all of 5% of the world’s population lives? Since when do foreigners have any right of entry at all that can be abridged?

        1. David Benson owes me five citations (one from the OED) and the source of a quotation after five weeks – there is no analogy in the above paragraph that you are referencing.

    2. Guests, students, visiting enterprise apprentices, political novitiates, successors, parasites, temporary asylum seekers, invaders, drug cartel operatives and various and sundry other forms of dependents should know well wherein the tread.

      The Founders wrote in the Preamble:

      “…to ourselves and our Posterity,…”

      The Founders thrice passed Naturalization Law.

      To wit,

      Federal naturalization laws (1790, 1795, 1802).

      United States Congress, “An act to establish an uniform Rule of Naturalization” (March 26, 1790).

      “Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof…”

  6. what happened in New York? Did an illegal immigrant win the democrat primary? They might as well begin adding them to the slate. I hear they can be admitted to the bar in California already, what’s the next step?

      1. David Benson owes me five citations (one from the OED) and the source of a quotation after five weeks – Can you compose an actual sentence? And what is the balderdash in reference to?

          1. anonymous – I am just trying to get my five citations and one source. That is not harassment.

    1. Kurtz: All Hispanics are illegal now..???

      If you’re talking about Alexandria Ocasio-Cortez, she is a Bronx-born Puerto Rican American and graduate of Boston University.

      But Kurtz, you’re saying that anyone whose name ends with ‘Z’ is suspicious?? I don’t get it. Sounds really stupid!! Like Puerto Ricans are ‘new’ to New York City?? Like they weren’t there 60 years ago when “West Side Story” opened on Broadway….????

      You should visit New York sometime. Getting off the farm might do you good.

      1. I Did. The have the best stage plays anywhere in the world. On and Off Broadway. After that it sort of … .stops. Now a days? If it wasn’t for 9/11 it will still be one of the two armpits of th enation along with SFO. both lost out to DC for the oval orifice award. By the way anyone can define ‘sphincter chock?’

        1. Should tryi gettng out of the city sometime and traveling the world.

  7. WASHINGTON — Justice Anthony M. Kennedy announced on Wednesday that he would retire, setting the stage for a furious fight over the future direction of the Supreme Court.

      1. A glorious event such as this causes intense euphoria which may impair one’s cognition.

        Apology accepted.

    1. Good and Trump will appoint the next one. Good good good. Hail Trump!

    2. takes 51, The GOP has 55 with the breakaways. The need is for 51. At least six former DNC are trying to get re-elected in a red state setting. What’s furious? Schumer and Pelosi helping Maxine water the sidewalk?

  8. If you’re Muslim and a millionaire, then you can buy real estate (from Trump) break all the laws you want and then claim diplomatic immunity. Most Oil Rich State Arabs are related to someone in a diplomatic post. If you’re Muslim and poor, seeking a better life, then sorry, we already have enough grass mowers seeking a better life. Money talks and all the rest walks. Kind of like the enemy in 1776. They had their moneyed class and we now have ours.

    1. Every nation has a millionaire door for immigrants. All of them. So what?

  9. When it comes to Trump he loves the “v” word. No, I mean the other “v” word. No, wait, he loves both “v” words, but I was referring to “victory”. To give him the second “v” word, Gorsuch had to simply ignore the truth, including the incendiary words used by Fatso during the campaign. He clearly and unequivocally told his dumb, white, racist base that he was going to keep out Muslims. Therefore, the only qualifying criterion for being banned was being Muslim. No valid risk assessment was involved in this fiat, but if it were, then Saudi Arabia should have been included, because that’s where the 911 terrorists were from. But, wait. The Saudi’s have money and Trump wants to do business there. Therefore, we must only ban Muslims from poorer countries.

    To you right wingers out there, do you really want a Supreme Court that decides the outcome first, and then ignores evidence in order to arrive at a result?

    1. Gorsuch didn’t have to ignore any truths. He had to state them: the final call on such matters is with the President, not the courts.

      1. But the President cannot discriminate on the basis of religion, which is what he did. The ban had to based on risk, which is wasn’t. Gorsuch intentionally ignored the mountain of evidence to arrive at the result he did.

        1. But the President cannot discriminate on the basis of religion, which is what he did.

          Natacha, there aren’t any non-Muslims in four of the six countries named, bar foreign residents (and there are hundreds of millions not in the six countries named). And since when do foreigners have some sort of equal protection claim against the U.S. Government?

            1. Isaac, the equal protection clause was enacted in 1868. It wasn’t treated as a roving mandate for judges to impose their preferred social policies until 1954. And it’s a bridge too far even for the court that gave you Obergefell.

          1. Additionally, most of these countries were on the “nations of special concern” in the previous administration.
            I don’t know some of the fine points of the current “travel ban” found constitutional by the SC; but the list from the previous administration to the current one, identifing countries that are especially problematic, is
            very similar.

            1. Tom

              You isolated a very important point. The ‘problematic’ was being dealt with as part of the tasks of the previous government-Obama-in order to safeguard the people of the US. Illegal immigration was in decline. Deportations of illegal immigrants who were problematic contributed to all time high levels of deportation. Countries were being singled out for their potential danger. The jobs were getting done. The situation was improving. All this without pointing fingers, blaming, lying, creating division, etc. The biggest difference between the Obama administration and the Trump administration regarding the issues of illegal immigration, deportations, etc is that Trump uses the issues to promote himself as the great rescuer of the American people. The sad fact of the matter is that millions of dupes actually believe this BS. Trump’s greatest infamous contribution to America will be raising the level of hatred and polarization in this country. We are going in the wrong direction.

              Listening to Trump, EVERYTHING was a disaster until he came along and now it is all fixed or close to being fixed.

              1. Your last paragraph has merit. The rest is the usual garbage.

        2. So what is the V word and does it matter to encite multi para’s of unexplaned gibberish? Did he use religion as a base? Then so did the Obama administration, the source of the nations on that list. And you forget that like Fascist and fascist there are two different meanings especially when the country is a theocracy. Thus your argument flounders and is found wanting but fishy.

    2. 5 minutes spent with Mr Goofgle indicates there are 50 Muslim majority countrys, while only 5 ate on the list. Additionaly, there are 2 that are not Muslim, so to pretend the Travel Ban is a Muslim Ban is either obviosly stupid or purposely inaccurate. I don’t remember anyone complaining when that great humanitarian, James Earl Carter, threw Iranians out of the country and prevented any more from entering, but maybe you weren’t old enough to be living in your Mom’s basement back then. Also, you could try reading the actual law, which plainy states that it’s the President had the authority to ban people he believes are a danger to the US. Don’t like it? Change the law.

    3. Just when I thought stupidity could sink no lower than it’s future casket…..tsktsk

  10. The right wing hacks on the Supreme Court are making the classic right wing mistake that we’ve seen in famous and wrongly decided decisions in the past like Dred Scott and Plessy v Ferguson. They are hiding from the truth by pretending that their strict deference to past precedent and custom is the only thing that matters when they know the sole motivating factor in this decision is bigotry against Muslims and that there is absolutely no national security interest that is being enhanced or improved by this measure. They are all white, they are all Christian and they are all well aware that they were put on the court to advance partisan political advantage for Republicans and they view that as their primary function in all relevant cases. This highly partisan, pro-bigotry and xenophobic decision will come back to haunt not just the right wing hacks on the Court but the entire Republican Party who are over reaching in ever branch of the government in their desperate attempt to shore up the political power of their shrinking political base. They will bitterly regret their grotesque abuses of power sooner than they think.

    1. Do you have a set of macros with which you compose these inane rants?

    2. Right wing white male Christian here wondering when the extreme Left grows a pair and wants to shift to caveman style “conflict resolution.” We are ready.

  11. I did like the shot across the bow for the lower courts in the decision.

  12. While the Supreme Court ruling is correct, the major threat to the United States, (despite the fact that they recently said women could drive), is Saudi Arabia — which is not in the ban, and a country for which Obama and Trump have made themselves complicit in war crimes.

    But Democrats, like Republicans, not to mention Trump, respect highly financed lobbyist groups.

    1. Saudi Arabia is not a threat to the United States and is not committing war crimes. We are not complicit in any war crimes.

        1. Yes. That’s the fifth round of insurgency in south Arabia in the last 60 years. One former president of Yemen likened political life there to ‘dancing on the heads of snakes’.

          The habit of progroaches and paleoroaches of sticking the appellation ‘war crime’ on any sort of military action is, of course, annoying and silly.

          1. Troll alert. You’re not being serious.

            For others who happen to be on this thread, there’s a good article over at the American Conservative by Daniel Larison.

            “The U.S. Is Still Enabling Saudi War Crimes in Yemen”


            He has a good blog, just like Turley does.

            His most recent article is worth a look as well.

            The Dying Children of Yemen


            1. The American Conservative does no independent reporting and most of their foreign affairs commentary is done by an off-his-lithium failed academic named Daniel Larison. I don’t know why you’d expect anyone who doesn’t work there to take their nutty glosses seriously.

              1. “off-his-lithium failed academic”

                You’re a piece of work, TSTD. But you’ve found your calling here — in the comments section of Jonathan Turley’s blog. Gotta wonder.

    2. Not to worry. Trump can arbitrarily add and subtract nations on a whim. He can add Saudi Arabia if he pleases, don’t be surprised if he threatens Canada to get his way on NAFTA.

      1. Why would you write this? Trump is not going to add Saudi Arabia. Nor would any Democrat push him to do so.

        1. SteveJ – Trump is totally out of control and will do as he pleases. Nobody thought he’d be going after Canada, the European Union and Harley Davidson but here we are. On the other hand, we did know he’d do everything he could to appease Putin and we were right about that.

        1. Michael Aarethun – I think Trump should add Canada to the travel ban because they tie up the doctors here in Arizona. We can never get an appointment in the winter months because of them. Az is invaded from both the north and the south during the winter.

    3. If the issue is national security, the two countries that perpetually interfere in US policy development, for their own benefit, Saudi Arabia and Israel, should possibly be banned for that reason as well as that they both advance terrorism. So it seems that those who are being banned are primarily guilty of poverty and desperation.

      1. Neither country ‘interferes in U.S. policy development in any way not exercised by any country lobbying Congress.

    4. Of course and so should you since your party gave us Money As Free Speech and at the same time established the ability to take away all former rights to establish one new right.

      “I have the right without explanation to all of your rights without exception.”

      And that gave us money as money as free speech. But it took a long and twisted, tortuous path from the late 1700’s to advance that far.

      It also established another point. Speech has value and having value it can be bought and sold including it’s use through the ballot box.

  13. Johnathan, I have a question to ask you. Given the results in New York last night what would it mean to dismantle ICE ?

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