The long and winding road to the resolution of legal challenges to the president’s third travel ban stopped briefly at the Fourth Circuit Court of Appeals, which affirmed a district court’s ruling that the ban violated the U.S. Constitution’s establishment clause by discriminating against Muslims. The decision was based heavily on public and private presidential expressions of animus toward Muslims, and the disproportionate effect the ban would have on Muslims. From a more practical point of view, the Fourth Circuit’s action probably ensures the Supreme Court will consider both statutory and constitutional arguments against the ban.
SCOTUS has already agreed to consider (likely in April) a Trump administration appeal of a Ninth Circuit decision (affirming a Hawaii district judge’s earlier ruling) striking down the travel ban on grounds that it violates the non-discrimination provisions of the basic law governing immigration policy (which replaced the blatantly racist national-origins system created in the 1920s). The high court has also allowed the travel ban to be implemented pending the various appeals. So it’s all now up to the Supreme Court, and if it chooses to kill the ban, it will have its choice of rationales for doing so, as served up by the two appeals courts.
Experts differ on how the case is likely to go before SCOTUS. Some think the Court tipped its hand by letting the ban go into effect during appeals; others disagree. And there are different implications for a decision either way based on whether it’s made on statutory or constitutional grounds. It’s reasonably clear from the history of this dispute that a “Muslim ban” is what Trump had in mind at the beginning. The question now is whether the serial efforts of his lawyers to clean up the ban, combined with the deference presidents typically receive when making decisions allegedly based on national security considerations, will allow Trump to prevail.