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A Top Law Professor Just Explained Why This Morning’s Supreme Court Decision Is Awful News For Trump

BY GRANT STERN

PUBLISHED ON JUNE 26, 2017

The Supreme Court just gutted Trump’s Muslim ban for all persons with a bona fide connection to the United States, while setting the matter for hearing in October. The court’s 16-page order (embedded below) also wipes out restrictions on immediate refugee resettlement, only leaving in place restrictions against foreign national entrants from six predominantly Muslim countries, because nobody sued on their behalf, nor did the litigants try.

Today’s ruling is a sound defeat for the underlying motive to Trump’s Muslim Ban; as White House senior advisor Discriminator-in-Chief Steve Bannon has made clear, his enemy is legal immigration.

Georgetown Law Professor Marty Lederman explains in the Take Care blog, plaintiffs fighting the Muslim Ban got virtually everything they asked for, including a detailed list of who may not be banned. The former Department of Justice lawyer wrote:

The most remarkable thing about the Court’s action today, however, is that it has denied the motions to stay the injunctions not only as applied to aliens with particular relationships to the (U.S. person) plaintiffs in these cases, but also as to all other aliens who have analogous relationships with other U.S. persons–“foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States”–even if those U.S. persons are not plaintiffs in either of the two cases! That is a huge victory for the plaintiffs.
Justice Thomas filed a dissent, joined by Justice Alito and the seat-stealing Judge Gorsuch.

Courts only give plaintiffs relief – like staying Trump’s order – when they find the likelihood of a plaintiff succeeding on the “merits of a case,” ie. on the legal arguments to be high.

Plaintiffs scored a huge victory on both of their main arguments, 1) Trump’s orders exceeded the Immigration and Naturalization Act, as well as 2) presidential religious discrimination in immigration choices is unconstitutional.

UC-Irvine Law Professor Leah Litman – a former clerk to Justice Anthony Kennedy – explains in another Plain Talk blog post that a wrinkle in means that SCOTUS “didn’t buy” Trump’s main argument, that the government couldn’t review immigration procedures while accepting people with legitimate purposes to enter America. She wrote:

The government’s argument for the entry ban and suspension of the refugee program, however, has been that that is impossible to do—that it cannot simultaneously review existing entry procedures while carrying out those very procedures. The claim has always been dubious, and the stay indicates the Court doesn’t really buy it either. Moreover, to the extent the Court does hear a challenge to the entry ban on its merits in October, by that point the “internal review” of entry procedures will have been completed.
Meanwhile, the Trump Administration only proved that the “apex of their powers” is extremely limited to stopping foreign nationals without any bona fide or pre-existing US ties, itself a topic open to debate if the case does get heard.

Professor Litman explained “in plain English” who won’t be affected by today’s SCOTUS ruling. She wrote:

In plain English: The injunction against the entry ban remains in force for persons with a “close familial relationship” to someone in the United States. The injunction against the entry ban also remains for persons with a “formal, documented, and formed in the ordinary course” relationship with an entity in the United States, such as a University. The Court lists as examples someone who has been admitted to a university, or accepted an offer of employment.
The California-based 9th Circuit Court of Appeals amended their stay of Trump’s Muslim Ban on June 12th, just to permit the Department of Homeland Security to begin Trump’s ordered “internal review.”

Today’s Supreme Court ruling could mean there’s a lot of upset federal employees – likely including numerous Trump appointees – who cannot go on Independence Day vacations because Trump’s executive ordered immigration “internal review” deadline could be interpreted as Monday, July 2nd.

Legal experts are divided as to if the Supreme Court will ultimately give Trump’s Muslim ban another hearing in October because by then, most of the executive order will have run its course.

What’s absolutely certain is that the Trump Administration just struck out mightily in today’s ruling, because legal immigration and travel to the United States likely gained new protections which were previously unknown.

The alt-right members of Trump’s West Wing – like Stephen Miller who said the “president’s powers shall not be questioned” – have to be pretty upset at the thought of being the fathers of a new legal precedent that will protect legal immigration for decades to come.

That’s because the government continues to challenge the issue – and it gets heard by the court – today’s ruling means it would likely result in a precedent-setting ruling against the government, resulting in permanent legal protection of the legitimate Constitutional rights of refugees, immigrants and the immediate family members of Americans abroad, forever.

Hopefully, the Court does take up the case next fall and enshrine this nation’s status as a melting pot nation of immigrants – with Constitutional rights and liberties – into law for generations to follow.

https://www.scribd.com/document/352293921/SCOTUS-Ruling-Halts-Most-Of-Trump-s-Muslim-Ban-16-1436-l6hc#from_embed