The Trump administration is likely to take its travel ban to the Supreme Court of the United States without a single lower court agreeing that it’s constitutional.
On Thursday, the Fourth Circuit Court of Appeals in Maryland upheld a federal district judge’s ruling that barred the Trump administration from banning residents of six majority-Muslim countries from entering the US for 90 days.
The Fourth Circuit case didn’t address Trump’s attempt to temporarily ban refugees, or to overhaul the screening process for future arrivals to the US; those parts of the administration’s March executive order are on hold thanks to a separate case, being considered in the West Coast Ninth Circuit. The Ninth Circuit has heard oral arguments in that case but hasn’t issued its opinion yet.
But the Fourth Circuit was the Trump administration’s best hope at a favorable ruling before reaching the Supreme Court.
Instead, it suffered the latest — and, arguably, harshest — in what’s becoming an unbroken string of judicial smackdowns over the travel ban.
“When the government chooses sides on religious issues, the ‘inevitable result’ is ‘hatred, disrespect and even contempt’ towards those who fall on the wrong side of the line,” wrote Chief Judge Roger L. Gregory. “Improper government involvement with religion tends to destroy government and to degrade religion[,] encourage persecution of religious minorities and nonbelievers, and foster hostility and division in our pluralistic society. The risk of these harms is particularly acute here, where from the highest elected office in the nation has come an Executive Order steeped in animus and directed at a single religious group.”
Technically, the Fourth Circuit didn’t fully uphold the lower court’s order. It made it clear that President Trump himself couldn’t be constrained by the courts, legally speaking (it was already pretty obvious in all other senses).
But the rest of the Trump administration — including the Departments of State and Homeland Security, which would be implementing the travel ban — is still prohibited, under this order, from enforcing the proposed 90-day ban on entries from residents of Iran, Libya, Somalia, Syria, Sudan, and Yemen. In other words, the only nominal victory the Trump administration has gotten in the lawsuits over this travel ban is a victory that practically means nothing at all.
And it’s now guaranteed that the Supreme Court, if it agrees to consider the ban at all, will be considering a policy that’s never been put into effect.
Trump’s government just can’t escape Trump’s campaign promise
Ever since Trump’s first attempt at a travel ban — rushed into effect on January 27 — was put on hold by a Washington judge a week later, the Trump administration has tried to disassociate the policy from Trump’s call during the presidential campaign for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”
First, they made a show of withdrawing and reconsidering the travel ban, asking several government agencies for input (only to be undermined when some of them said there was no reason for a ban at all). Then they issued a new executive order in March that avoided the biggest legal problems with the first ban (such as its apparent ban on green card holders from the blacklisted countries returning to the US from abroad) and gave the government more time to plan for its implementation.
But the rulings in Maryland and Hawaii put the new ban on hold the night before it was supposed to go into effect. In both cases, judges ruled that even if the ban didn’t explicitly target Muslims, it was impossible to disentangle it from Trump’s discriminatory campaign promise.
The Trump administration made a valiant effort in oral arguments before the Fourth Circuit to argue that a promise Trump made in 2015, before a single presidential primary, shouldn’t outweigh everything the administration has said or done since then to argue the travel ban isn’t a Muslim ban. But Chief Judge Gregory, who wrote the court’s opinion, was, to say the least, unpersuaded:
These statements, taken together, provide direct, specific evidence of what motivated both EO-1 and EO-2: President Trump’s desire to exclude Muslims from the United States. The statements also reveal President Trump’s intended means of effectuating the ban: by targeting majority-Muslim nations instead of Muslims explicitly. And after courts enjoined EO-1, the statements show how President Trump attempted to preserve its core mission: by issuing EO-2—a “watered down” version with “the same basic policy outcomes.” J.A. 339. These statements are the exact type of “readily discoverable fact[s]” that we use in determining a government action’s primary purpose. McCreary, 545 U.S. at 862. They are explicit statements of purpose and are attributable either to President Trump directly or to his advisors. We need not probe anyone’s heart of hearts to discover the purpose of EO-2, for President Trump and his aides have explained it on numerous occasions and in no uncertain terms.
The Supreme Court might not even have to take up the travel ban now
It’s unlikely that the “very liberal Ninth Circuit” (as Trump and his administration usually refer to it) is going to be more deferential to the president. The Fourth Circuit was clearly the administration’s best hope at a win, and it hasn’t gotten one.
But even if the Ninth Circuit does, somehow, rule in the administration’s favor, the Fourth Circuit’s ruling means that the 90-day ban against residents of the six majority-Muslim countries will still be on hold.
In other words, no matter what happens in the Ninth Circuit, the Trump administration is almost certainly going to appeal the Fourth Circuit’s ruling to the Supreme Court.
The question is whether the Supreme Court agrees to take the case.
If the Ninth Circuit rules in the administration’s favor while the Fourth Circuit has ruled against it, the Supreme Court will almost certainly step in to resolve the discrepancy. (That’s called a “circuit split,” and the Court tends to step in to tell one circuit it’s wrong so contradictory precedents don’t spring up in different parts of the country.)
Again, though, that’s not terribly likely to happen. What’s more likely is that the Trump administration will ask the Supreme Court to overturn both the Ninth and Fourth Circuits to put the ban back in place. And technically, the Supreme Court has the option of simply refusing to hear the case and letting the lower courts’ decisions stand.
This probably won’t happen — there are enough votes on the Supreme Court sympathetic to the administration to grant the case a hearing, and besides, the Supreme Court will likely feel obligated to weigh in on the president’s signature policy. For that matter, the White House still has a shot at winning a Supreme Court case, despite the lack of support from judges so far. But going to the Supreme Court with a winless record in two circuits is not the strongest position.