For someone who once promised Americans he’d win so much they’d be tired of winning, President Donald Trump hasn’t really had a lot of victories in the first several months of his administration.
But on Monday, he got one of the biggest wins he’s had so far.
The Supreme Court handed Trump a victory on his travel ban — arguably Trump’s most identifiable policy proposal — when it partially lifted lower courts’ stays on the ban, allowing the administration to ban certain people from entering the US over the summer before the court takes the case up in full in the fall.
The travel ban originated with Trump, first as a “Muslim ban”; featured frequently in his speeches (even as the particulars evolved); and was the subject of a high-profile signing ceremony to close out the last week of his term.
In policy terms — expressed as a matter of how many individuals will be prevented from entering the US this summer who wouldn’t have been banned before Monday — we simply don’t yet know what the scope of the victory is. It’s pretty clear that the ban will have a limited impact on most temporary visa holders, it’s a lot less clear what it’s going to mean for refugees — the Trump administration will have a lot of leeway to interpret the court’s ruling.
But on some level, the “travel ban” itself was always more of a symbolic gesture than a real one. The changes that President Trump’s executive order threatens to make to visa and refugee admissions are huge — with the temporary bans providing a cover for a permanent shift in how the US decides who gets to come here. The reason the “ban” part matters is that it’s what President Trump wanted all along. Now, he’s gotten what he wanted, and the whole world knows it.
It’s hard to see that as anything other than a win. And it’s harder still to dismiss the idea that the symbolic victory will itself have real-world effects.
To Donald Trump, a symbolic victory is the only kind that matters
Donald Trump himself certainly sees Monday’s Supreme Court action as a victory.
Very grateful for the 9-O decision from the U. S. Supreme Court. We must keep America SAFE!— Donald J. Trump (@realDonaldTrump) June 26, 2017
He’s wrong in most of the particulars (it wasn’t a “decision;” it’s necessarily the case that the ruling was unanimous; etc.) But it makes sense that he’d greet it as a victory, despite the fact that many visa-holders will still be allowed into the US (and even if most refugees are allowed to join them). Because he now gets to put into place something called a “ban,” which was clearly all he wanted to begin with.
People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!— Donald J. Trump (@realDonaldTrump) June 5, 2017
Everything we know about the history of the travel ban — from its early development before the inauguration, masterminded by Steve Bannon and Stephen Miller, to its hasty rollout and embarrassing post-facto revisions, to the “watered-down” version issued in March — indicates that Donald Trump is not intimately aware of the details of the executive orders he has signed on the subject, and has not been particularly involved in the process of developing them. (Indeed, he has openly blamed his own Department of Justice for the revised order he signed in March.) But he really doesn’t like it when judges have stopped his administration from doing what he thinks it should be able to do, and he really likes calling the policy a “ban.”
This is par for the course for President Donald Trump: His interest in policy is limited to an interest in getting “a win” on something.
As a real-estate tycoon, back in his Art of the Deal days, “Money (was)n't important except as proof that he is more successful than his peers,” Vox’s Zack Beauchamp wrote during the campaign, and "‘Deals’ are literal codifications of his victories over other people.” Something similar’s true now, but for “money” and “deals” read bills and executive orders.
It’s why Trump pressed the House of Representatives to take a vote on the American Health Care Act before they had majority support for it; held a Rose Garden reception when they tried again and passed the chamber; then called the bill “mean” when he realized there were political downsides to it.
It’s why his administration has scurried to lower the bar for what counts as a “wall” on the US/Mexico border, and who’s expected to pay for it. The point isn’t that Donald Trump believes fervently that there needs to be a concrete barrier along the entire border. It’s that Donald Trump wants something to point to and call a “wall,” and the details maybe should be left to people who have thought harder about the subject.
As much as the policies being perpetuated by the Trump administration matter, they’re not the sum total of his presidency’s effect on the world. The symbolic victories are important politically for Trump — they’re promises he can tell his base he’s kept.
The Supreme Court just made it easier for the Trump administration to cast refugees as enemies
One of the most consistent themes in the rhetoric of Donald Trump is that Americans can’t trust people who come from unstable parts of the world — even, and perhaps especially, when those people claim to be fleeing persecution.
When the world was horrified by the Syrian refugee crisis in 2015, Trump warned of a “Trojan horse” of ISIS infiltrators taking advantage of American hospitality. Every time a terrorist attack is perpetuated in Europe and it appears a Muslim might be the perpetrator, President Trump has cited it hastily as a reason his “ban” is needed — reinforcing the idea, often contrary to the reality of who the attackers actually were, that there’s a critical mass of terrorists seeking to sneak into the US for the purpose of doing us harm, and that America’s instincts of generosity are a mere soft-headed liability.
The federal judges who’ve ruled against the Trump administration on the travel ban — the ones whose rulings were partially stayed by the Supreme Court on Monday — have been extremely skeptical that the Trump administration is making its decisions based on thorough assessments of national security, rather than simply on fear. But the Supreme Court showed much more deference. It granted, by default, the administration’s assertion that national security requires closer vetting of refugees around the world — and simply tried to weigh that against the claims of harm suffered by people and organizations in the US if their relatives, employees and students weren’t allowed on American shores.
The balance it struck — that the travel ban applies only to people without a “bona fide relationship” with an American individual or entity — is only partially explained in the Monday order, and is almost certainly going to unleash a flood of lawsuits as various people try to establish “bona fide” relationships over government denials. Hopefully, the “bona fide relationship” standard won’t seep into other areas of immigration law, which is already strewn with subjective standards that are only intermittently subject to judicial review. But even if it isn’t, the Supreme Court has validated the idea that people who don’t already have connections in the US, and want to come here anyway, should be viewed with a certain amount of suspicion.
This idea is already part of the way that America looks at foreigners, and especially refugees. But it couldn’t be more different from the refugee program’s purpose. Unlike every other immigration program in the US, refugees aren’t brought here on the basis of being good for America. They’re brought here because their homes and lives have been destroyed by persecution and they deserve the chance to settle down and create new, permanent lives for themselves — not because they’re particularly worthy, but because they’re humans.
When the Supreme Court weighed judicial standing (of the groups challenging the travel ban) against security, it determined that for people merely fleeing persecution — the people for whom the refugee program was designed — security trumped.
This administration has banged the drum of distrust of refugees whenever it can — and even when it can’t. It’s just gotten another opportunity to remind America that someone who merely wants to flee persecution should not be trusted.
The Supreme Court just cut off the court-led “resistance” at the knees
The reason the Supreme Court deferred to the Trump administration on security is simple: when the president says something is a “national security threat,” it’s pretty well-established that the courts aren’t supposed to second-guess him.
It’s just that, when the president in question is Donald Trump, the federal courts that had previously heard the travel-ban cases weren’t exactly willing to extend him the benefit of the doubt.
The string of losses that the Trump administration suffered in the cases against both the initial travel ban in February and the revised version this spring were satisfying to the administration’s critics, and it was easy to understand why the courts weren’t deferring to the Trump administration when Trump and key advisers had a tendency to carelessly undermine the arguments their lawyers were making in court.
At the same time, though, it was pretty clear that a president who wasn’t Trump — who had never promised a “Muslim ban,” or who didn’t have a tendency to insult and threaten judges — would have had an easier time making the same case. The constitutional questions posed in the travel-ban cases really weren’t open-and-shut, and the lower courts’ rulings had a tendency to make them seem that way. It wasn’t hard to conclude that judges were being, at least in part, motivated by a desire to stand up for the system of checks and balances against a president who didn’t appear to respect them much.
But given the choice between defending the judicial branch and following existing tradition, the Supreme Court chose the latter on Monday.
Maybe, when the court takes up the travel-ban case in full in the fall — if it hasn’t been rendered moot in the meantime, of course — some or all of the justices will refuse to grant the traditional deference to the Trump administration, and will push the administration’s lawyers as hard as lower-court judges have. But on Monday, when they had to make a snap decision, they determined that it wasn’t appropriate to allow skepticism of the administration to keep Trump from doing what he claimed he needed to do.
The lower courts’ harshness toward the travel ban was the clearest sign that at least some federal judges thought of themselves as part of the resistance. Monday’s ruling is the clearest sign that, at least for now and at least on the whole, the Supreme Court does not.
Sending people a message they’re not wanted is likely to change their behavior
One downside of calling Trump’s executive orders a “Muslim ban” is that Muslims beyond the handful of blacklisted countries might be under the misapprehension that they’re banned from entering the US; the idea that there is something in the US called a “travel ban” in effect may be the only information many people have about it.
The version of the ban that’s going to go into effect starting on Thursday, in theory, shouldn’t deter anyone who has a “bona fide relationship” to someone or something in the US. Those people should, in theory, be allowed to apply for visas, receive them, and enter without incident. But that might not be an easy nuance to grasp.
Someone simply thinking, in the abstract, about applying to study abroad in the US or taking a business trip here might not stumble upon the right information that would explain to them that either of those circumstances count as “bona fide relationships” under the Supreme Court’s ruling.
Even if they know the facts of the ruling on paper, they might be skeptical that it’ll be that easy for them in practice. The process of applying for a visa is often convoluted and arbitrary. A certain amount of suspicion that they’re going to have to jump through unwarranted hoops to prove a “bona fide” relationship might not be irrational.
Or they’ll simply choose not to come to the US — because they have been sent the message, through the fact that there is a “travel ban” on certain people from certain countries and that the president of the United States is very proud of this fact, that they aren’t necessarily welcome here.
It would be a sensible decision on their part. It’s not their responsibility to deny the Trump administration a victory. But it would help the Trump administration and those who welcomed the travel ban get exactly what they wanted, in the final analysis: fewer people coming to the US from countries they find suspicious.