In its most consequential decision of the term, the Supreme Court on Tuesday upheld President Donald Trump’s so-called “travel ban” — arguing that the chief executive has the power to limit entrance into the US from seven countries.
It is a massive win for Trump, who had watched as his attempts to put travel bans in place were repeatedly blocked by lower courts — arguing that to do so exceeded his power and that his emphasis during the campaign on making this a “Muslim ban” violated the Constitution.
“Wow,” was all the usually voluble Trump offered up — via Twitter — in the immediate aftermath of the ruling.
Having skimmed the actual ruling — and having closely followed the politics of the travel ban for more than a year — here are my five takeaways.
1. Elections matter. A lot.
The vote to uphold the travel ban was 5-4 — along party lines. If Hillary Clinton beats Donald Trump on November 8, 2016, there’s no way that the vacancy caused by the death of Antonin Scalia is filled by Neil Gorsuch. It’s almost certainly filled instead by someone more likely to side with Ruth Bader Ginsburg and Sonia Sotomayor rather than Samuel Alito and Clarence Thomas. And while it’s impossible to believe a Clinton White House would have proposed a travel ban anything close to what Trump did, even if she did, the court would be far more likely to vote it down — not uphold it.
The truth is, Republicans may not yet be done reaping the judicial consequences of Trump’s 2016 victory. Rumors are rampant that Justice Anthony Kennedy may well retire at the end of this term, which comes to a close this week. While Kennedy voted in favor of upholding the travel ban — and was appointed to the court by Ronald Reagan — he is seen as a not-always-reliable conservative vote. His retirement would afford Trump an opportunity to appoint someone along the lines of Gorsuch and, in so doing, impact the ideological makeup of the court for decades to come.
2. This is as much Mitch McConnell’s victory as it is Donald Trump’s
Trump will view the travel ban decision as a validation that he was, from the start, right all along about his ability to limit who comes into the country. (Worth noting: The court upheld the third iteration of the travel ban after the first two were thrown out due to problems with the way they were written.) And there’s no question this is a win for Trump. He campaigned on the idea that the President needed to make the tough call of keeping people from certain countries out — or, at least, upping the threshold to allow them into the United States — in order to keep Americans safe. This court ruling validates his right to do that.
But don’t underestimate the role McConnell, the Senate majority leader, played in Tuesday’s decision. McConnell, you will remember, refused to hold confirmation hearings for Merrick Garland, the judge then-President Barack Obama put forward as Scalia’s replacement. McConnell argued that Scalia’s death in February was too close to the November election for Obama, an outgoing president, to be allowed to make the call on who would fill the seat. (Obama nominated Garland, who was seen as a sort-of consensus candidate, in mid-March.) “The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country,” explained McConnell at the time.
Liberals went crazy but McConnell refused to budge. Obama castigated McConnell but McConnell refused to budge. And the reality of how the confirmation process works made it impossible for McConnell’s decision to be overturned. Tuesday’s court decision validated that strategy. Never one to miss a trolling opportunity, McConnell’s campaign arm tweeted out this photo of himself and Gorsuch shortly after the opinion was announced.
3. The President has loads of power
Since, really, Bill Clinton, we’ve seen presidents seek to expand their powers while limiting the powers of Congress. George W. Bush did it. Barack Obama did it. And, yes, Trump has and is doing it.
What the court ruling on the travel ban reinforces is that the President of the United States has very wide latitude. What he says, largely speaking, goes. “The Supreme Court has reaffirmed the President’s sweeping statutory authority when it comes to deciding who may and who may not travel to the United States, authority that both President Trump and future presidents will surely rely upon to justify more aggressive immigration restrictions,” University of Texas law school professor and CNN Supreme Court analyst Stephen Vladeck said.
Broadly speaking, US presidents seek to push the outward boundaries of presidential power left by their predecessors. This is a major growth of those boundaries that the person who follows Trump in office will treat as the new normal.
4. The court didn’t take Trump literally
At the heart of this case were Trump’s tweets and past statements as a candidate that he would impose a Muslim ban if elected president. Back in December 2015, Trump insisted that a “total and complete” shutdown of Muslims entering the country was absolutely necessary. “Without looking at the various polling data, it is obvious to anybody the hatred is beyond comprehension,” Trump said at the time. “Where this hatred comes from and why we will have to determine. Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of horrendous attacks by people that believe only in jihad, and have no sense of reason or respect for human life.”
After Trump won, he and his White House went out of their way to insist that the travel ban as proposed was not a Muslim ban, noting that some of the largest Muslim countries in the world (by population) were not included in it. And Trump and his allies insisted that what he said as a candidate simply couldn’t be cited as evidence of what he would do as president.
The majority on the court sided with Trump on Tuesday. Wrote Chief Justice John Roberts: “We may consider plaintiffs’ extrinsic evidence, but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional ground.” Which, in legal-ese, means that what Trump said as a candidate matters less than what he did as President.
5. The court wanted to make clear it wasn’t endorsing past Trump statements on Muslims
The court, ever mindful of the impact of its rulings across not just the country but the world, wanted to make very clear that in upholding Trump’s travel ban, it was not sending any sort of signal about its own views on Islam or religion more generally.
Writes Roberts:
“Plaintiffs argue that this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition. But the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself.”
Again, in layman’s terms: This decision is in no way, shape or form a judgment on whether a President should talk — and tweet — the way Trump does. Instead, it is a decision about whether Trump has the power to limit who comes into the country. And, on that front, the court believes Trump does have that power. But, that’s it.
Kennedy is even more plain on this point, writing: “An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”
