The news over the weekend of widespread judicial intervention to stop implementation of President Trump’s travel ban may have created the misleading — or at least premature — impression that the whole thing is about to go down in flames as a violation of law and Constitution. That is not at all clear.
As an excellent summary from the legal website Just Security explains, there were five relevant judicial orders issued over the weekend: in New York, Boston, Virginia, Seattle, and Los Angeles. All involved stays to stop detention and deportation decisions until legal challenges to the order were heard, and all involved people who had some prior right to be in the United States under the system Trump displaced on Friday.
There is some doubt about the nationwide applicability of the judicial stays, though the New York and Boston actions did indeed appear to reach beyond the particular detainees at those cities’ airports. There could be others emerging today. But in any event, the order remains in legal limbo, and no judge has yet done anything to lessen the order’s effect on people who were not in physical limbo when the order came down.
These orders [do not] have any impact on folks affected by the Executive Order who haven’t been stuck at airports — either because they’re already here in the United States (and now can’t leave), or because they’re somewhere overseas (and now can’t get here). Put another way, a series of very important legal battles were fought this weekend, but in the broader context of this Executive Order, they were but minor skirmishes in comparison to the legal war that’s necessarily coming …
Before anyone assumes too quickly the Trump administration is going to lose that war, it should be remembered this is an area of law where presidents have an unusual degree of leeway, as a New York Times take on the situation notes:
[T]he president has broad legal authority to restrict immigration. Under the Immigration and Nationality Act, he can restrict any class of aliens he deems “detrimental to the interests of the United States” without needing legislation or congressional approval.
The question that could be resolved very soon is whether the sloppiness of the travel ban and its chaotic implementation raise enough statutory, constitutional, or international issues to override this presumption of presidential authority. Briefs are currently being prepared on both sides of all those issues, you can be sure.
