Most of the press cast Monday morning’s blockbuster ruling at the Supreme Court on President Donald Trump’s executive order regarding refugees and migrants as a “partial victory” for the administration — but one legal observer says that, as a policy matter, it is a decisive victory for the White House.
In the immediate aftermath of the ruling, court-watchers in the legal academy characterized the decision as something of a political compromise, a settlement brokered by the so-called “institutionalist” justices affording some good news to each litigant. The Court consolidated several lower court rulings and agreed to hear the case when it reconvenes in October, and stayed several injunctions blocking the order’s enforcement.
The Court, however, tailored the stay to provide an exception for foreign nationals with a “bona fide relationship with a person or entity in the United States.”
“Today’s Supreme Court ruling is a mixed bag,” Professor Ilya Somin of George Mason University’s Antonin Scalia Law School wrote at the Volokh Conspiracy. “It offers something to both sides, while also giving both some implicit bad news.”
UC Irvine School of Law Professor Rick Hasen took a similar view, arguing the ruling sets the case on a trajectory for dismissal for mootness while preserving the president’s general prerogatives.
South Texas College of Law Professor Josh Blackman took a different view. During a conference call organized by the Federalist Society, Blackman argued that, as a practical matter of policy, the ruling was a victory for the administration, regardless of the Court’s intentions.
The administration, he explained, had a waiver program in place to allow individuals from the six countries named in the order to enter the country if they had a significant (read: “bona fide”) relationship to a person or entity in the United States. The crux of the controversy concerned only those individuals who had no such relationship. As such, Monday’s decision essentially codified the administration’s policy.
“At issue with the ban were specifically people who had zero connection to the United States,” he said. “Who is now allowed to be banned? People with zero connection to the United States. So what this decision basically does is codify the waiver, at least for this period, and allows the government to reject everyone else.”
“In that sense,” he added “this is a pretty significant victory for the Trump administration.”
Blackman also noted that the decisions of the 4th and 9th U.S. Circuit Courts of Appeals, which upheld injunctions blocking the order, will be vacated if the high court dismisses the case for mootness, a development many anticipate.
In effect, he argues, the Court could afford the president his travel ban, vacate the lower court rulings which stymied the administration, and never reach the merits of the case — on balance, a win for an embattled Trump White House.
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