A year ago, the Supreme Court upheld, by a 5-4 vote, President Trump’s imposition of a ban on travel from several predominantly Muslim countries. The court’s decision was gravely disappointing the day it was handed down. A year later, it looks even worse — particularly because it rested on three premises pushed by Trump Administration lawyers that have proven thoroughly unfounded.
The false premises should act as a cautionary tale: This term’s Supreme Court case on whether to allow a citizenship question on the 2020 census was similarly argued on what may turn out to be false premises.
In the travel ban case, first, the more conservative justices emphasized its temporary nature. The decision acknowledged that the provision of federal immigration law relied on by President Trump refers to a president’s authority to “suspend the entry” of foreigners to the United States; it further acknowledged that the word “suspend” means something temporary rather than permanent. Moreover, the majority opinion emphasized that, according to the same federal law, the president could maintain the ban only “for such period as he shall deem necessary.” The ban was thus upheld as something merely temporary — as required by law.
Yet here we are, a year since the court upheld Mr. Trump’s third version of the ban, almost two years since that version took effect and nearly 29 months since Mr. Trump issued the ban in its original form. The ban upheld by the court remains in full effect, and there’s not a whisper from the White House that it will be repealed. What the court’s majority accepted as temporary looks increasingly permanent. This was exactly the risk that a bipartisan group of former top officials — like William Webster, Jack Danforth, Christie Whitman and others — warned.