The U.S. Supreme Court’s approach to President Donald Trump’s travel ban makes no sense and is causing needless chaos and suffering.
The court agreed to review two federal court of appeals decisions that had blocked enforcement of the travel ban. At the same time, the justices said that pending their decision, the travel ban could go into effect for people without prior connections to the United States, while people who had relationships to individuals or institutions in this country could come here. In legal and human terms, this approach makes little sense.
As virtually every judge who has considered the question has concluded, the travel ban clearly is unconstitutional because it is discrimination based on religion. It was motivated by a desire to exclude Muslims.
On Jan. 27, Trump issued an executive order limiting travel to the United States, especially from seven countries that are composed almost entirely of Muslims. In February, the 9th Circuit Court of Appeals in San Francisco upheld an injunction to keep this order from going into effect. Trump soon issued a new executive order. That is now before the Supreme Court.
Trump’s new order suspends the entire refugee program for 120 days, and caps the number of refugees who can be admitted during this fiscal year at 50,000, instead of 110,000. It bars immigrants from Sudan, Syria, Iran, Libya, Somalia and Yemen for 90 days. Unlike the earlier executive order, the new version does not exclude people who have the lawful right to be in the United States, such as holders of green cards and visas.
However, the 4th Circuit Court of Appeals based in Richmond, Va., concluded in May that the new travel ban could not go into effect because it was based on impermissible religious animus against Muslims.
Soon after, the 9th Circuit also upheld an injunction against the new travel ban, saying that it likely violated federal laws that prohibit the federal government from discriminating based on nationality in its immigration decisions.
Responding to the Trump administration’s request that the full travel ban be implemented, the Supreme Court sought a middle ground. On the final day of its 2017 session, on June 26, the justices announced that they would consider the case in the next session, but ruled that travel ban could be implemented “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.” But the court continued the injunctions against the travel ban for people who have a “close familial relationship to someone in the United States” or a “formal, documented” relationship to an institution in this country.
As a matter of law, this compromise doesn’t make sense.
The key factor in evaluating whether to lift the injunction is supposed to be whether the government has a substantial likelihood of ultimately prevailing. That standard should apply whether a person seeking admission to the U.S. has or doesn’t have a relationship to someone in the country. If the court concludes, as the lower courts held, that the executive order is religious discrimination or in violation of federal law, then it is invalid as to all.
In terms of human lives, the Supreme Court gave the Trump administration the power to draw arbitrary and harsh lines. The administration since announced its new policy: “Close relationships does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-laws and sisters-in-law, fiances, and any other ‘extended’ family members.”
I am now hearing of students and faculty members at American universities who are being denied visas to enter – or re-enter – the country because of the government’s approach to the Supreme Court’s order.
The justices should have foreseen that the Trump administration would take a very restrictive approach that breaks apart families and interferes with employment and education. The travel ban is unconstitutional and illegal, and should have remained enjoined in its entirety.
Professor Erwin Chemerinsky is dean of University of California, Berkeley School of Law. echemerinsky@law.berkeley.edu