SCOTUS, the Travel Ban, and the Half-Full Glass

Curmie was not surprised that SCOTUS overturned lower court rulings to support parts of President Trump’s travel ban imposed against citizens of a handful of majority-Muslim countries, but confesses he didn’t expected unanimity. True, The Guardian, a reputable if left-leaning publication, tries to spin the ruling as not really unanimous: it was per curiam, meaning, if Curmie, who is no lawyer, understands the term correctly, that the decision was announced for the court, with no specific author and with the pretense of unanimity: the equivalent of a political convention’s nominating someone “unanimously,” even though everyone knows a sizeable minority of the delegates voted for someone else.

But, let’s face it, it has all the trappings of a unanimous decision, even if not everyone was completely on board (indeed, only three, very predictable, Justices—Alito, Gorsuch, and Thomas—were all-in to the point of wanting the entirety of the ban to go into effect immediately). Certainly President Trump, who is nothing if not hubristic, bellowed his presumed overwhelming victory for all to hear.

Curmie thinks the glass is half full.

               

It is unquestionably safe to say that the constitutional arguments will continue until the Court takes up the case again in October—after (ever so conveniently) the 90-day ban on citizens from those half-dozen countries and the 120-day ban on refugees will have already expired. But it may just be that what Curmie has long viewed as an unconstitutional edict is in fact merely ham-fisted (the BBC’s term), stupid, Islamophobic, ill-considered, ineffectual, divisive, discriminatory, and smug.

Let’s start with who’s excluded: citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen. And let’s compare that list to the 9/11 attackers, who actually did mean us harm: of those 19 men, 15 were from Saudi Arabia; two others were from the United Arab Emirates, and there were one each from Egypt and Lebanon. Let’s add to the latter list the Boston Marathon bombers: both Kyrgyz, with one also holding Russian citizenship and the other also a naturalized American. Ah, Gentle Reader, you’ve noticed something. The Venn diagram charting those two lists looks like Little Orphan Annie’s eyes: the overlap is precisely zero people. Of course, that doesn’t mean there aren’t some folks in, say, Libya who’d be more than happy to blow up a city block in New York City… but there are no doubt a fair number of native-born Americans who’d cheerfully do the same.

You’ll also have noticed, Gentle Reader, that it has now been over 90 days since even the revised version of the original January 27 travel ban was proposed. During that time there have been… wait a minute, that number was just here… where’d it go? Ah, here it is: there have been zero attacks in the US.  Curmie, of course, doesn’t attribute that number to the lack of a travel ban, but feels pretty confident that had the ban been enacted and there had been no pseudo-Islamic terrorist events on American soil, that the White House would have bellowed full-throatedly that their nasty xenophobic stratagem was the difference between peace and ontological annihilation.  [Note: Curmie’s recent trip to the UK was sandwiched between the Manchester bombing and the London Bridge attacks; this essay is not in the slightest intended to suggest that the threat of specifically Muslim violence is anything but real.] 

With the ban now partially lifted, Curmie fervently hopes that we do indeed need to endure the future preening of Chanticleer, who may truly believe that his crowing causes the dawn instead of merely announcing it. But the fact is that the Supreme Court’s partial lifting of the injunction is actually closer to what Curmie was hoping for than to what POTUS wanted. One way to tell that is to note that Mr. Trump declared “a clear victory.” If DJT says it, you can pretty well take it to the bank that it isn’t true.

You see, the key part of what transpired this week wasn’t lifting the injunction that prevented the US government from denying entry to citizens of those half dozen countries who had no demonstrable connection to this country. Rather, it was the explicit insistence that the borders be open to all those “who have a credible claim of a bona fide relationship with a person or entity in the United States”: students attending an American university, foreign nationals offered employment by a US company (or university, etc.), close relatives of American citizens, and so on. This level of sensibility, nuance, and restraint was (of course) altogether lacking in any proposal coming from the Trump administration.

Protestations, such as those from Justice Thomas, that such a criterion is unworkable are largely but not completely without merit. Expecting State Department officials to do their job in vetting prospective visitors to this country doesn’t seem unreasonable. Such a process already took place. One of the exchange students scheduled to be coming to Curmie’s university last fall, for example, couldn’t get a visa. Whether that denial was appropriate isn’t a matter for current concern. What’s relevant is that if that young man could be denied, there’s a mechanism already in place that might result in denial.

There are some anomalies in the SCOTUS decision, however. For example: let’s say that I have a friend of long-standing who happens to be Iranian. That person could not, under this ruling, visit his old pal Curmie while on vacation (we’re friends but not close relatives); if, on the other hand, Curmie convinced his university to invite old buddy Farooq to come give a lecture, well, that might qualify as bona fides… and if Farooq happens to spend a couple of extra days at Chez Curmie, then so be it. But SCOTUS also wants to ensure that the lecturing gig isn’t just an end run around the regulations so that Curmie and Farooq can reminisce. Exactly how that would work logistically is beyond my feeble ken.

So yes, there’s probably both too much and too little wiggle room for US government officials: entry into the country ought not to depend on which clerk reviews a file. Still, shifting the presumption from allowing a national of a country at odds with the US to enter unless there’s a specific reason not to, to denying such access unless there’s a specific reason to allow it… that’s not the end of the world, much as Curmie would have preferred the status ante quo. There’s still the rather perverse choice of targets for the ban—essentially Muslim-majority countries with whom good relations are not perceived by the Trump administration as being of sufficient geo-strategic importance to avoid pissing off potentially radicalized Muslims in those and indeed in other countries. Still, whereas the ban is bad policy, correcting executive branch stupidity that isn’t unconstitutional isn’t in SCOTUS’s brief.

Ultimately, the SCOTUS decision to grant a partial waiver of the injunction and to hear the case more formally in the fall is cowardly but tactically sound, whether or not it’s actually a good idea. Both sides of the case can (and do) claim at least partial victory, and the whole business will, one hopes, be moot by the time the fall session begins. That is, unless the short-term bans are extended, which would not surprise Curmie in the slightest, since those “temporary measures” sure look like the thin edge of the wedge. ACLU lawyer Omar Jadwat agrees, fearing the Trump administration will use this week’s order “as a back door into implementing the full-scale Muslim ban that it's been seeking to implement.”

That’s a troubling prospect, but for now, the glass appears half full.