There 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.