President Donald Trump finally caught a break in the courts Monday. The Supreme Court unanimously voted to allow much of his controversial travel ban to go into place while it considers the case. The move reverses injunctions issued by lower courts that blocked the ban. More broadly, it suggests that the Supreme Court — in contrast to lower court judges whose suspicions of Mr. Trump’s true motives were central to their decisions — intends to consider President Trump’s actions with the “presumption of regularity” it would apply to other Presidents.
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Monday’s order allows the portion Mr. Trump’s revised executive order barring entry for refugees and citizens of six countries at high risk of terrorism, without preexisting ties to the U.S., to go forward while it considers the case. “Denying entry to such a foreign national does not burden any American party by reason of that party’s relationship with the foreign national,” the Court said in its opinion. However, the Court leaves in place lower court decisions blocking enforcement of the order with respect to people with “a credible claim of a bona fide relationship with a person or entity in the United States.”
The Court concluded that the injunctions should have been tailored more narrowly to entrants similarly situated to those at issue in the cases before the appeals courts. The Court’s opinion explained that the case before the Ninth Circuit considered Dr. Ismael Elshikh, a U.S. citizen living in Hawaii with relatives in Syria. Dr. Elshikh argued that the ban placed an undue burden on him by preventing his Syrian mother-in-law from visiting him in Hawaii. Yet, the injunction the court issued bars enforcement of the ban for all entrants, not just those in similar situations to Dr. Elshikh. That, the Court concluded, went too far.
The Government, the court said, has compelling interests n protecting national security. These “are undoubtedly at their peak when there is no tie between the foreign national and the United States… To prevent the Government from pursuing that objective by enforcing [the President’s Executive Order] against foreign nationals unconnected to the United States would appreciably injure its interests, without alleviating obvious hardship to anyone else.”
While the court hasn’t decided the case on its legal merits, its opinion signals that it could rule in favor of the Trump Administration when it takes it up in October. As Justice Clarence Thomas wrote in a dissent objecting to the court’s failure to reinstate the entire ban “the Government has made a strong showing that it is likely to succeed on the merits—that is, that the judgments…will be reversed.”
Trump and the ‘Presumption of Regularity’
The courts have historically given the President broad deference in matters of national security. The judiciary does not have intelligence services and foreign policy experts to equip it to make such judgements. The Trump Administration claims that the travel ban was intended to protect national security. So it was an unusual break with precedent when the lower courts declined to take his word for it. Pointing to President Trump’s campaign rhetoric, the appeals courts concluded that the primary purpose was instead to ban Muslims.
In the travel ban case, lower courts treated President Trump differently than other Presidents — substituting their judgement of what the President intended for his. In essence, they concluded that the President was lying. Ben Wittes and Quinta Jurecic argue that this resistance to President Trump among judges is rooted in suspicion that he cannot be trusted to follow his oath of office faithfully and as such he should be treated as something other than a normal President:
It goes, not to put too fine a point on it, to the question of whether the judiciary means to actually treat Trump as a real president or, conversely, as some kind of accident—a person who somehow ended up in the office but is not quite the President of the United States in the sense that we would previously have recognized.
Whatever you think of the wisdom of President Trump’s travel ban or of the man himself, this approach sets a troubling precedent. The question of whether or not Trump is fit for the office he holds was, for better or worse, answered by the voters in November. The judiciary’s role is to interpret laws, not to psychoanalyze the President. As law professor Josh Blackman, who opposes President Trump’s travel ban on policy grounds but nevertheless believes it is legal, wrote in a Politico op-ed back in March, “[w]hen judges treat this president as anything other than normal, it sends a signal to the public that the chief executive is not as legitimate as his predecessors… Trump’s presidency will come to an end sooner or later. But the precedents set during this period will linger far, far longer.”
The judiciary’s role is to interpret laws, not to psychoanalyze the President.
Perhaps the most significant effect of the Court’s action Monday will be that it reestablishes the grounds for judicial considerations of President Trump’s actions within the normal bounds applied to other Presidents. Or, as Professor Blackman put it, “[t]he Supreme Court did what the lower court judges would not–treat President Trump like any other President with the ‘presumption of regularity.'”