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ICYMI: David Leopold: “Why the Supreme Court’s Travel Ban order was a stunning defeat for Donald Trump”

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Yesterday, the Supreme Court agreed to review two major legal challenges to Trump’s Muslim ban,Trump v. International Refugee Assistance Project (IRAP)and Trump v. Hawaii. The cases will be consolidated for oral argument and heard during the October 2017 term.

The immediate reaction from the President and his administration was a celebration of their big win against the constitution. However, a sober analysis reveals that this wasn’t the win the administration was hoping for.

As David Leopold notes in a new, must-read for Medium:

The problem for Trump is that his Travel Ban “victory” was about as “clear” as the record breaking crowds at his sparsely attended inauguration.  Far from siding with Trump the Supreme Court, in a lopsided vote, handed him yet another remarkable loss. Here’s why:


[D]espite a long tradition of deferring to the President’s authority over national security, the Supreme Court did not buy Trump’s argument.  Instead, the Court essentially rebuked the President and upheld the injunction on a significant portion of Trump’s travel ban.  The idea that this was a “clear victory” overlooks the significance of Court’s action.

Far from deferring to Trump’s determination that citizens from the 6 countries were a danger to national security, a lopsided majority of the justices left the core of the nationwide injunction in place, ruling that Trump’s travel ban “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.”  Then, as if to underscore its point that families should not be divided, businesses should not be hamstrung and refugees should not be denied protection, it listed examples of people who would be permitted to travel to the U.S. under the injunction, including: a person who wishes to enter the U.S. to visit a family member, such as a wife or mother-in-law; students admitted to schools in the U.S.; workers who have accepted an offer of employment from a U.S. organization; a lecturer invited to speak to an American audience or a refugee with a bona fide relationship with a U.S. entity.

Leopold’s analysis concludes with a plea for continued vigilance over the administration’s implementation of the Court’s ruling:

Of course, the real concern after yesterday’s ruling is not that the Supreme Court made a problematic tweak to the nationwide injunction, it’s the question of how the Trump administration will act.  In reality, anyone who reaches U.S. soil with a visa has already established “bona fide” ties to a person or entity in the United States. Otherwise, they wouldn’t be here. Yet, there are already indications that U.S. Customs and Border Protection officials at the ports of entry have been directed to conduct extensive interviews, research and database review for each person arriving from any of the 6 countries covered by the ban–presumably to determine whether a traveler has a bona fide relationship with U.S. person or entity.  We have already witnessed the chaos of travelers stuck at airports around the country as a result of Trump Administration-driven government incompetence and seen examples of how agents in Trump executive branch departments have outright refused to follow stated rules and procedures as outlined by past court rulings.

The Supreme Court’s ruling makes clear that the overwhelming majority of citizens traveling to the U.S. should be admitted upon arrival.

Let’s hope, and ensure, that the Trump administration breaks with tradition and shows respect for the courts and the law.

Leopold’s warning provides an echo to a new piece in theWashington Post from Ishaan Tharoor, who concludes:

The Supreme Court’s decision on Monday doesn’t strip away the moral validity of the arguments posed by the ban’s critics. And the court’s justices wrote “the relief we grant today” should enable the White House “to conclude its internal work and provide adequate notice to foreign governments within the 90-day life of [the order].” If the Trump administration seeks to extend the ban well beyond the summer, it will be all the more clear that its motives aren’t quite as benign as it claims.

Read Leopold’s latest, “Why the Supreme Court’s Travel Ban order was a stunning defeat for Donald Trump,” online here. Read Tharoor’s “Trump’s travel ban still doesn’t make any sense” online here.