This week the U.S. Supreme Court will begin hearing the case involving the current version of Trump’s Travel Ban, which bars the majority of people from Syria, Yemen, Iran, Libya, and Somalia from entering the U.S. This is the third attempt at a Travel Ban by the Trump administration. It also bans travel to the U.S. by people from North Korea and certain Venezuelan government officials; these two aspects of the ban have not been legally challenged so they won’t be part of the Supreme Court case. This version originally included Chad as well but that restriction was lifted earlier this month.
The Travel Ban began as a campaign promise made by Trump in December of 2015 when his campaign announced, “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what the hell is going on.” Once he became the Presidential nominee for the Republican Party he apparently got some campaign advisors who were somewhat more familiar with the laws of the United States and his rhetoric on the issue was adjusted somewhat to focus more on “extreme vetting” of people from specific regions.
Shortly after taking office the first version of the ban was enacted as an Executive Order and was a 90-day ban on people from Iraq, Sudan, and the five Countries included in the current ban. It also indefinitely canceled the Syrian refugee resettlement program, and stopped any refugee resettlement in the U.S. for 120 days. Upon signing the order Trump commented, “We all know what that means”, which was interpreted by many as a reference to his original commitment to ban Muslim people from entering the U.S. based on their religion.
The original ban was challenged almost immediately after being implemented. A Federal Judge put a hold on it, which an appeals court refused to lift. In March of 2017 the Trump administration signed a second version of the ban. This time the ban was written specifically to avoid the legal challenges that had killed the first version. However, two Federal Judges still found issues with the ban and blocked it. Appeals by the administration succeeded only in getting a partial ban implemented. There were months of legal battles on the details of that version which eventually expired.
The current version was enacted as a Presidential Proclamation in September of 2017. Unlike the previous versions it’s been written as a permanent ban. This version has also been worded carefully so that rather than focusing on citizens from the listed countries it centers on whether of not the governments of these countries are capable of consistently assessing any risk that people seeking visas might pose to the U.S.
This kind of case is why the Supreme Court exists: it will be setting legal precedent, determining the validity of a law, specifying how our anti-discrimination laws and the first amendment can be interpreted, and more. One of the big questions that often gets overlooked in the details of this particular case is how much power does the President have in terms of unilaterally implementing this type of sweeping foreign policy change. This may be one of the most interesting aspects of the case because while the more conservative Judges may back other aspects of the law they may be hesitant to set a precedent that grants this kind of Presidential power.
The second big question here is how much does intent matter when making laws, and how should the court weigh that when determining the legality of a statute. If the travel ban had been written as it stands now, without the previous versions and without all the bigoted anti-Muslim rhetoric, it’s likely the challenges to it would not have made it this far. But because this ban stems from an unconstitutional idea of banning people based on their religion it becomes more complicated legally. Especially since at no point has the Trump administration backed away from the original intent in any meaningful way. Essentially every version of the ban can be seen as an attempt to legally implement some form of a “shutdown of Muslims entering the U.S.” The Supreme Court will have to decide if they want to reward the administration for trying again and again to find a way to circumvent the U.S. laws preventing religious discrimination.
While this is a fascinating case and will serve to set some noteworthy legal precedents, there are also extremely urgent real world consequences hanging on the outcome. There is no way to know whether or not Trump and his administration genuinely believe people from these specific countries pose any real danger to American citizens, or if they are just trying to ban as many Muslim from the U.S. as they can get away with. But what is known is that a lot of the people included in this ban are in danger right now. Both Syria and Yemen are currently embroiled in deadly wars, and for many people from these countries getting out is literally a matter of life and death.