In agreeing to let the Trump administration in large part follow through with the President’s travel ban, pending full arguments and a final decision in the fall, the Supreme Court struck a sane temporary balance.
The ban, as we’ve said before, is quite likely legal and constitutional, given the wide latitude U.S. law gives the President to restrict foreign entry and immigration.
But it is very bad policy, motivated more by arbitrary animus than by a sound rationale to protect the nation from terrorism.
If that weren’t clear enough when President Trump first issued the supposedly urgent edict — prohibiting entry from seven and then six nations, none of whom had sent a single deadly terror attacker to our shores for the past 40 years — the intervening months underline its senselessness.
America has yet to be overrun by would-be Iranian, Syrian, Sudanese, Libyan, Somali or Yemeni terrorists exploiting our openness. Meantime, in England and elsewhere, lethal attacks have been committed either by homegrown terrorists or by immigrant perpetrators from elsewhere.
And that 90-day pause on admissions from the six nations and 120-day pause on all refugee entry — on a clock that was supposed to begin when the original executive order was issued in January — was going to be a vital window of time enabling the U.S. government to review and strengthen vetting procedures. (That’s the governing translation of Trump’s campaign pledge to figure out “what the hell is going on.”)
It is now 150 days later; the administration has yet to review and strengthen its vetting. Trump, nonsensically, claims he now needs 90 more days to do so.
In its decision Monday, the high court did not render ultimate judgment on whether the executive order is allowed or not, but decided whether, under the sloppier-by-design analysis applied in determining whether the judiciary branch can preemptively halt a directive, there’s a strong enough case to freeze it in place.
The court said no, with one meaningful asterisk. The ban remains blocked when it prevents entry by individuals with genuine, strong relationships with U.S.-based individuals or institutions.
That is an important acknowledgment that the administration could not at this stage credibly convince the court of the urgent need to abridge the rights of thousands of Americans: a wife expecting a husband, a university anticipating a student, an employer awaiting an employee.
Still, when it is time to issue a formal and final ruling, it would surprise us little if the high court affirms the President’s broad legal right to pause immigration from the six countries at issue.
Under the U.S. Constitution, many mistakes are within a President’s power to make.