President Donald Trump’s travel ban, in its third iteration, has been upheld by the Supreme Court in an opinion (written by Chief Justice John Roberts) that all but declares: This is normal.
Roberts’s opinion is a defense of the established process by which the most recent version of the ban was designed and implemented, of the rationales the administration offered to the Court for it that didn’t have anything to do with the “Muslim ban” Trump proposed as a candidate.
The Supreme Court’s decision barely seemed to inhabit the same reality of the week in January 2017 when the first travel ban turned America upside down.
But then again, the ban itself changed over that time — and so, really, did the reality around it.
Think back to January 2017 — the first week of Trump’s presidency, when he signed an executive order banning all entries to the US from people from seven Muslim-majority countries and nearly all refugees from around the world on a Friday afternoon. It was implemented barely four hours after its text was made public, with no time for the various agencies involved in its implementation to even get on the same page about who, exactly, was banned under the executive order, much less train the field operatives enforcing it on the ground.
And immediately, it felt like something fundamental about the country had changed.
On that Friday night, people were pulled out of boarding lines in European airports. By Saturday, dozens of people landed in American airports and were immediately taken into detention. It was eventually revealed that at least 750 people were detained under the ban, though at the time, the government wouldn’t even divulge how many airport detainees there were.
Members of Congress had to show up at airport terminals to demand information about who was being held by Customs and Border Protection agents; reports of agents disobeying federal court orders rippled through Sunday night.
Hundreds of thousands of green card holders — legal permanent residents of the US — became terrified of leaving the country out of fear they wouldn’t be allowed to return; it took nearly a week, and multiple mixed messages, for the Trump administration to confirm that the ban didn’t apply to them. American communities waiting to take in refugees had to box up their hopes as their new neighbors’ arrivals were delayed for weeks or potentially for good.
The epic rupture brought epic resistance. Pro-bono law clinics sprang up in airport terminals; massive spontaneous protests erupted outside them. The American Civil Liberties Union collected $24.1 million in donations over a single weekend. World leaders condemned the administration; so did corporate leaders; so did religious leaders. Some Republicans criticized their party’s new president; many retained an (apparently embarrassed) silence. Lawyers swept into court for emergency hearings, first fighting to limit the government’s powers to detain immigrants under the ban and then, within a week, putting the ban on hold entirely.
The travel ban was the purest possible example of a truth that Trump’s opponents had already turned into a slogan: This Is Not Normal.
Then, slowly but surely, it became just that.
Trump’s travel ban, now in its third iteration, is currently being enforced in full; it’s been in effect since December. And thanks to the Supreme Court’s ruling, it will remain in place indefinitely.
But the months in which we’ve had the travel ban have barely made a ripple.
During oral arguments in April on the travel-ban case, the protest outside the Supreme Court numbered a couple hundred people — exactly what you’d expect for a high-profile Supreme Court case. The Supreme Court takes up important cases that many people care about every year; Trump v. Hawaii was just the latest in a long list of those.
There was nothing in Roberts’ decision to suggest that the travel ban had ever been much more than a typical political debate.
Both of the things that made the last days of January 2017 feel so abnormal — the excesses of government caprice and cruelty, and the unstoppable outpouring of resistance energy from all sectors of society — have become invisible to the naked eye.
That doesn’t mean they’ve disappeared. But it means they’ve become normal — that both the ban and the resistance to it have shrunk to the point that they can easily be encompassed within the typical scope of “political issues,” not a fundamental shift in American daily life.
The system worked to constrain and moderate the travel ban
While the court battle has raged throughout all three versions of the travel ban that the Trump administration has implemented or tried to implement — the January 2017 executive order, a replacement executive order issued in March 2017, and a September proclamation that set up the current, indefinite ban — the policies in the ban have changed substantially. And it’s hard to deny that the current version of the ban is much, much more moderate than the first.
The initial travel ban covered seven countries, all of them majority Muslim: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. It included permanent residents of the US (at least until the administration clarified it didn’t). It included Iraqi citizens who had served as translators in Iraq, and Christian families attempting to flee persecution. It covered refugees from around the world. It allowed people arriving in the United States, with valid visas, to be detained and sent back once they got here. It made no exceptions and showed no mercy.
The current ban covers five of the seven originally banned countries — Iraq and Sudan have been dropped — in addition to Venezuela and North Korea (whose bans aren’t being challenged in the lawsuit). It exempts green card holders and anyone who held a valid visa to come to the US as of the date the proclamation was issued. Foreign students are all but exempted from the ban (among the five banned Muslim-majority countries, only one ban — Syria — includes student visa holders). Temporary foreign workers from Libya, Somalia, and Yemen are allowed in. And (at least in theory) any visa applicant has a shot at a waiver from the ban, if the US decides admitting her is in the country’s best interest. And there’s no longer a refugee ban to go along with the country-based ban.
It’s hard to quantify the relative scope of the bans because the US doesn’t keep precise numbers on how many people are admitted to the country in total each year, or how many people currently live in the US on a particular immigration status. So it’s impossible to know for sure the number of green card holders who were in danger if they left the US under the first ban but are now safe.
But even just looking at the numbers the government does keep — admissions of nonimmigrants (temporary visa holders) and refugees — the people targeted by the first version of the ban made up 160,418 admissions during fiscal year 2016. The people targeted by the ban in place now make up fewer than 70,000 — less than half of the original ban’s scope.
These changes are almost entirely the result of the Trump administration’s attempt to build a court-proof travel ban. The current version is as close to court-proof as a policy signed by the man who once called for a “total and complete shutdown of Muslims entering the United States” could possibly get. While that means it’s likely to stay in place, it also represents a victory for the ban’s opponents. The courts (perhaps inspired by the resistance in the streets) forced the administration to keep its ambitions within the scope of what was legally permissible, and the administration complied. The system worked.
The Trump administration has learned how to use bureaucracy to accomplish its policy goals
What made the first travel ban feel so abnormal wasn’t the actual policy, but the way that policy was implemented: The authoritarian chaos of the airports seemed to herald an era in which the government was fundamentally unpredictable and fundamentally unaccountable.
The spectacle sparked a counterspectacle: the airport protests, with thousands of Americans schlepping out to show solidarity for people they’d never met. That made it harder for courts to dismiss the lawsuits against the ban by saying the national interest justified sweeping executive power. At the same time, the protests were given continued momentum by the fact that the ban’s challengers kept winning in court: The first ruling against the administration, ordering it to release some of the immigrants being held in custody at airports, came when the ban had been in effect for less than 24 hours.
The Trump administration might have thought “shock and awe” was necessary to fulfill a campaign promise as quickly as possible. But in the months since, it’s developed a modicum of patience — or caution — and learned to use the government it controls.
Customs and Border Protection agents don’t have to enforce the ban at airports because people are stopped long before they reach the US; America now has a travel ban that’s being enforced primarily off American shores. And instead of leaked news reports about a rushed and secretive drafting process and unbriefed, untrained federal officials, the current ban touts an interagency review process that identified unacceptable security gaps in specific countries’ intelligence sharing — the sort of thing that would, under any other president, seem entirely normal.
This isn’t to say that the administration’s agenda has been thwarted. It’s just subsumed its agenda into the existing process of admitting people to the US or rejecting them.
The process of granting visas to workers, travelers, and family members of Americans is already subjective and opaque — people from banned countries are hardly the only would-be immigrants or visitors who’ve found their visas denied for reasons beyond their control. The refugee screening process already took two years. Slowing it down further shows up in statistics (which indicate the administration is way behind pace even to make its record-low refugee cap in fiscal year 2018), but isn’t something you could notice happening if you were watching it unfold on the ground.
The changes — what skeptical judges have called the “cleansing” of the travel ban — make it harder to challenge in court. They also dull resistance. The travel ban is happening so far out of sight and out of mind that it’s not even clear how many Americans know it’s in place at all. Even in the Supreme Court press gallery on the morning of the Trump v. Hawaii oral argument, one reporter could be heard explaining to another, “They’re letting the third ban go through right now”; her colleague replied, “Oh, really?”
The president overshadows the government
Donald Trump hasn’t become normalized. Far from it. But the fact that the Trump Show has remained a 24-hour phantasmagoria, while the Trump administration has learned the subtle arts of bureaucracy, has meant that the two are increasingly independent — with the former overshadowing the latter.
Often, the president commands attention because what he’s doing matters. Just as often, though, he commands attention because he commands attention. The days before the Supreme Court’s ruling on the travel ban were dominated by coverage of Trump’s calls to eliminate due process for immigrants crossing the border without papers, and the aftermath of his administration’s separation of thousands of families — but also by coverage of his insults to the intelligence of Rep. Maxine Waters (D-CA), and his efforts to fan the outrage over his press secretary being denied service at a Virginia restaurant.
One of the truly maddening things about this administration for journalists, to be fair, is that sometimes news stories that seem like part of the circus turn out to matter a lot — the most important legal development in the investigation into the president’s personal lawyers and closest allies appears to have been the news of Michael Cohen’s attempt to pay off a porn actress. But just as often, the things that seem significant turn out to be red herrings or swiftly abandoned trial balloons.
The pace is exhausting. It is overwhelming. It is not impossible to resist, but it’s extremely difficult to resist proactively — to continue paying attention to something that has long since been pushed off the front pages when there are so many fresher things to be fixated on and outraged by.
It’s easy to think of the travel ban saga as a resistance tragedy — Trump is winning because the people who oppose him can’t keep up the fight. That’s not quite true. The travel ban has been assimilated into normal political discourse and policymaking. It has become normalized, for better or worse.
Did the travel ban’s normalization help Chief Justice Roberts rule in its favor? Probably. But if America is to have a travel ban, it seems better, for those who dislike it, that it be a normal one.