The Supreme Court on Monday allowed the third version of President Trump’s oft-litigated travel ban to go into full effect while lower courts continue to hear challenges to its legality.
The court’s order was unsigned, but Justices Ruth Bader Ginsburg and Sonia Sotomayor said they would have kept in place partial stays on the order while the legal process plays out.
The order restricts travelers from eight countries, most of which are majority Muslim: Syria, Libya, Iran, Yemen, Chad, Somalia, North Korea, and Venezuela. Unlike the previous two iterations of the ban, this version is meant to be permanent, not temporary; the list of countries was arrived at after a “comprehensive, worldwide review of the information shared by foreign governments that is used to screen aliens seeking entry to the United States,” according to solicitor general Noel J. Francisco, who argued for the Trump administration.
But that supposedly rigorous process had previously met met with skepticism by federal courts in Maryland and Hawaii, which saw the ban as insubstantially different from previous orders that more explicitly targeted Muslims. It is unconstitutional to ban groups from entering the country based solely on religious affiliation.
Judge Derrick K. Watson of the Federal District Court in Honolulu found that the latest iteration of the ban “suffers from precisely the same maladies as its predecessor,” and that it “plainly discriminates based on nationality” in violation of federal law “and the founding principles of this nation.” Oral arguments are now expected in two federal appeals courts in San Francisco and Richmond; the case may end up back at the Supreme Court for final judgment.
The travel bans have generally not met with much success in courts throughout the year. The first version, which caused chaos at airports nationwide, was struck down, as was the more lenient second version. The Trump administration tried again in September with the purpose of expanding the list of countries to drive home the point that Muslims weren’t their main concern.
But many saw the inclusion of North Korea and Venezuela as fig leaves to obscure the real intent behind the restrictions. President Trump made his preferences clear enough again and again on the campaign trail, when he ordered a “complete and total shutdown” of Muslims entering the country “until our country’s representatives can figure out what is going on.” Since then, his anti-Islam prejudice — often expressed on Twitter and at rallies — has been used against him in court repeatedly to prove that the ultimate purpose of the travel ban, even if not stated outright, is still clear as day. Ultimately, the freedom of thousands of relatives of Americans, as well as tourists, to travel to the United States may hinge on whether Anthony Kennedy and John Roberts buy that argument.