Constitutional & Legislative Law: Chris Gober appears on Fox News to weigh in on the Supreme Court’s travel ban rulingTuesday, June 27, 2017
As you listen, here are some key summary points to understand about the ruling and where the case goes from here:
1. In their own words, this is what the Court concluded: “We grant the Government’s applications to stay the injunctions, to the extent the injunctions prevent enforcement of §2(c) with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States. We leave the injunctions entered by the lower courts in place with respect to respondents and those similarly situated, as specified in this opinion.”
2. This ruling is effectively only a temporary one, and the Supreme Court is scheduled to hear the full case on the merits at the beginning of its October 2017 term. Two points about that: First, keep in mind that the party that usually gets the stay at the Supreme Court (here, that’s Trump) usually wins on the merits, so there’s a reason bottles of Cristal were probably being popped at the Trump International Hotel last night. Second, the 90-day ban will be over by the time the Court can issue an opinion on the merits, which means Trump might allow the travel ban to be carried out over the next 90 days, walk away from the Supreme Court case by conceding it’s no longer a live controversy, and claim victory. Of course it’s more nuanced than that, but let’s be honest: he’s very skilled at convincing people of winning that may or may not have occurred.
3. The decision was issued per curiam, which is a decision delivered via an opinion issued in the name of the Court rather than specific judges (i.e., not specific author was identified). What’s interesting about this is that per curiam opinions are usually used for non-controversial issues, and the fact that no liberal Justice on the Court issued a dissenting opinion. That begs the question: was it really 9-0 or are the liberal Justices keeping their powder dry until the case is heard on the merits?
4. Three conservative Justices concurred in part and dissented in part, stating that the Court should have reinstated ALL aspects of the travel ban (one such Justice was the newly appointed Neil Gorsuch). In fact, I think the most telling line in the opinion comes from Justice Clarence Thomas’s dissent: “And I agree with the Court’s implicit conclusion that the Gov’t has made a strong showing that it is likely to succeed on the merits—that is, that the judgments below will be reversed.”
5. By splitting some hairs and distinguishing between foreign nationals WITH a bona fide relationship with a person or entity in the United States versus those WITHOUT such a bona fide relationship, the Court may have created a practical application problem that the Administration, immigration officials, airlines, etc. have to navigate (in other words, these people now have to make the bona-fide vs. non-bona-fide determinations on the fly, which are judgment calls that will certainly lead to lower-court litigation). For President Trump’s sake, let’s home that his Administration rolls out this travel ban with more clarity and precision than they did the first one—which was a flop—but the Court certainly didn’t help his cause.
This post was written by Chris Gober, Managing Partner of The Gober Group. Chris served as legal counsel to Senator Ted Cruz’s presidential campaign and is a trusted legal adviser for the most consequential matters in American politics, including campaigns, constitutional litigation, and government investigations.