Because President Donald Trump failed to devise a reasonable and effective short-term travel ban, the U.S. Supreme Court stepped in Monday to help. And a good thing too. The checks-and-balances system exists to handle these moments.
Here we have a mess that goes back to the first week of Trump’s presidency, when he issued a sweeping executive order on national security grounds that would have shut down travel from seven predominantly Muslim countries for 90 days. The order, meant to protect America from terrorism, was overly broad. The rollout was thoroughly botched too. Remember those chaotic scenes from airports when some legal U.S. residents were detained?
Federal courts blocked the program, which represented the first step in guiding Trump back onto solid constitutional ground. Trump tried again with a narrower order targeting citizens of six countries: Iran, Libya, Somalia, Sudan, Syria and Yemen (Iraq was omitted). That order also was blocked — until the Supreme Court’s Monday action.
The high court said it will hear arguments on the ban in October, but until then split the difference between Trump’s wishes and lower court concerns: The ban on visitors from six countries can be enforced, except on individuals who have an ongoing relationship with the United States. They still can enter. Those individuals include, for example, someone with close family here or acceptance to an American university. The same ground rules apply to another part of the order putting a 120-day stop to the U.S. program for admitting refugees.
Trump has legitimate cause to look closely at how the U.S. screens travelers and refugees to determine whether the system keeps the country safe or has deficiencies. The profile of a would-be terrorist has changed since the rise of Islamic State, with Europe suffering a number of serious attacks by individuals who had connections to Syria. Trump’s decision to freeze travel from certain countries and suspend refugee arrivals could have been within his purview, if he had implemented his order responsibly. He didn’t.
The problem with Trump’s effort is that it looked like the U.S. government was discriminating against a broad group of people based on their religion, in violation of the First Amendment. Trump, in the eyes of federal courts in Hawaii and Maryland, wasn’t so much protecting America as targeting Muslims. Both courts reached their conclusions in March in part by examining Trump’s record as a candidate, which included his 2015 statement “calling for a total and complete shutdown of Muslims entering the United States.” Appeals courts upheld the rulings, with one questioning whether Trump’s actions breached the scope of authority granted by Congress.
The issue of whether one can divine a presidential order’s intent by parsing a presidential candidate’s heated rhetoric is an interesting one, but the Supreme Court may not even need to go there. We don’t like Trump’s bombast, including his Twitter rants, because he often sounds irresponsible. But often his verbosity is irrelevant to his job responsibilities. In this situation, the details of Trump’s immigration order are what count. Lower courts saw enough to sideline Trump’s order. The Supreme Court will hear the full arguments. In the meantime, the administration doesn’t have to sit on its hands. Officials can get on with the task of vetting U.S. immigration policy while blocking from entry foreigners without any U.S. ties.
From a national security perspective, Trump could have been done with this process by now. If the president had gotten the details right the first time, the U.S. could have been admitting foreigners under newly tightened rules. Trump failed that early test of issuing rules within the confines of the law. Now the Supreme Court will have its say.
This editorial appeared in the Tuesday, June 27, 2017 edition of the Chicago Tribune.