Trump's travel ban dilemma will only be solved by the Supreme Court

Trump's travel ban dilemma will only be solved by the Supreme Court
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On Monday, the United States Supreme Court issued two, essentially-identical orders in the “travel ban” cases, pending in the Courts of Appeal for the Fourth and Ninth Circuits. The orders stay the preliminary injunctions which two federal trial courts had issued. The effect is that President Trump’s executive order limiting travel to the United States for nationals of eight nations goes into immediate effect — at least temporarily.

For any but the most ardent fans of legal news, the most natural questions are: “Wait, which travel ban?” and “Do these orders actually matter?” Let’s consider those two questions in turn.

President Trump has issued three separate travel bans in the first year of his presidency. These orders are not about the first travel ban, issued as an Executive Order in January. The president withdrew that ban in the face of early court losses. Nor are these orders about the second travel ban, issued as an Executive Order in March. The major provisions of that ban ended before the Supreme Court could issue a decision. These orders arise from the third travel ban, issued as a Presidential Proclamation in September.

It’s important to distinguish these various travel bans, because they differ significantly in scope and effect. The first travel ban exclusively targeted citizens of predominantly Muslim nations, and excluded few citizens from those nations from its reach.

This latest travel ban includes non-Muslim nations like North Korea and Venezuela. It explicitly excludes persons who already have a green card and individuals with dual nationality, traveling under the passport of a non-excluded nation.

Additionally, the scope of the ban varies depending on the nation. So, for example, only government officials of Venezuela are forbidden from traveling to the United States. Similarly, the Proclamation suspends immigration from Somalia, but Somalis may still visit the United States, though they are subject to “additional scrutiny” to determine if they might be a threat.

All this to say that the third travel ban is less obviously flawed than the two that preceded it.

Do these stay orders matter? Probably not much.

In this case, trial courts in Hawaii and Maryland issued preliminary injunctions forbidding the United States from implementing the third travel ban while the case is proceeding through the courts.

Judges rightfully hesitate to order a defendant to change its conduct, while the case is pending. The whole point of a case is to decide whether defendant should act differently, and courts don’t want to prejudge such matters.

A court only orders a preliminary injunction if it can conclude that (1) the plaintiffs are likely to win, and (2) the plaintiffs will be harmed in a way that cannot be fixed at a later time. Here the two trial courts made such findings.

Preliminary injunctions are immediately appealable. The United States, defending the third travel ban appealed to the Fourth and Ninth Circuits, and also requested the United States Supreme Court to stay the operation of the preliminary injunctions while the Circuit Courts considered the matter. That’s exactly what the Supreme Court did.

The orders do not say why the Court is staying the trial court’s preliminary injunctions, but one can guess that they did not anticipate the plaintiffs being irreparably harmed by a short delay. The Court states in both orders that: “In light of its decision to consider the case on an expedited basis, we expect that the Court of Appeals will render its decision with appropriate dispatch.” In other words, hurry up!

In the current hyper-partisan political climate, it’s natural to look for winners and losers in each small legal skirmish. But most of modern complex litigation is trench warfare — a few yards gained here, a few yards lost there. The government may have gained a yard or two with the Supreme Court’s orders, but no more.

When will we know who won the war? We’ll get a hint when the Fourth and Ninth Circuits decide the appeals, but it’s the Supreme Court that will probably determine the ultimate outcome. If nothing else, these two orders show that the Court is paying attention.

William Fernholz is a lecturer-in-residence at the UC Berkeley School of Law and the director of its appellate and competitions programs.