On June 26, the Supreme Court announced it would hear two cases challenging President Donald Trump’s Muslim Ban. The Court’s decision to hear these matters should surprise no one. Both cases, decided by the 9th and 4th Circuits, not only involve important and novel legal issues (the Supreme Court is a sucker for those), but are of substantial social and political importance. Given the ban’s unprecedented nature, the response it has received, and the legal issues involved, the Supreme Court’s decision to step in is also a necessary one.

Both the 4th and 9th Circuit courts made clear that, while the political branches of government have significant discretion over immigration matters, that power remains subject to constitutional limitations. Neither Congress, nor the president, has a blank check to do whatever it pleases, even at the borders. Nor, in the courts’ view, can national security be used by the government as a trump card in all situations.

The Muslim Ban cases test the scope of presidential power over immigration issues, including whether the president can discriminate against immigrants and travelers to the United States on the basis of their national-origin and religion, as well as how courts should treat the context and history of a law in deciding cases, including evidence of overt discriminatory intent by government officials. At a time when the U.S. president flouts the rule of law, prejudice has become a winning campaign strategy, and national security a potent justification for eroding basic constitutional protections, these are questions that must be resolved. Only the Supreme Court can do it, definitively.

The Court’s decision to take on this direct challenge to America’s basic constitutional principles should, as such, be welcomed. At the same time, however, the Court’s June 26 opinion suggests its approach to the case may not be the beacon for civil liberties and tolerance that some might wish. While the 9th and 4th Circuit opinions earlier this year were strong statements against prejudice and abuses of presidential power, the Supreme Court’s decision late last month to partially reinstate the Muslim Ban, until it decides the merits of the case, suggests its views on these matters may be quite different and far less definitive. If the Supreme Court tries to “split the baby” when it actually decides the case on the merits, the Justices will leave the institution with a dubious legacy. There is no splitting the baby when it comes to the discriminatory intent (and fabricated national security rationale) behind the travel ban, and for what such a decision would mean for understandings of the Constitution, at home and abroad.

The Supreme Court’s June 26 decision

Though it is unclear what the Supreme Court’s focus will be when it considers the merits of the Muslim Ban, a number of issues deserve its attention. The 4th Circuit opinion, for example, raises important questions about how to determine if an immigration law has no “bona fide reason” behind it, as well as the extent to which courts can look beyond a law’s text to determine whether such a bona fide reason exists or if a law is a product of religious animus. The 9th Circuit case similarly involves critical issues, like the breadth of executive authority under Section 1182(f), as well as how those powers relate to the Immigration and Naturalization Act’s (INA) prohibition against discrimination. In their opinions, both courts also relied, in part, on statements made by Trump, before he became president – a move government attorneys’ vociferously contested and about which the Court will likely have a view.

Already, though, there is some indication of how the Court may treat, at least some of, these issues. In its June 26 decision, the Court ruled on the government’s request to stay the Muslim Ban, until the merits of the case are decided. In a 6-3 opinion, the Court partially agreed to this request. It held that the ban could not be enforced against foreign nationals or refugees “who have a credible claim of a bona fide relationship with a person or entity in the United States,” but allowed the ban to go forward with respect to foreign nationals and refugees, without any ties to the United States.

In deciding to exempt those with “bona fide” relationships, the Court determined that the government’s national security interests are outweighed by the rights of people or entities in the United States, who have relationships with foreign nationals or refugees abroad. By contrast, the Court determined that the government’s national security concerns are stronger than the interests of foreign nationals and refugees, who have no personal, professional, or other kinds of enumerated ties to the United States, to travel to the United States.

The Court’s concern for the rights of those inside the United States – as opposed to those whom the Executive Order most directly impacts, foreign nationals and refugees living abroad – suggests it may be unlikely to ultimately find the ban unlawful in its entirety. For similar reasons, the Supreme Court may declare at least part of the ban invalid, based not on the Establishment Clause or violations of the INA, but rather on the Fifth Amendment’s procedural Due Process protections. Both sets of plaintiffs raised Due Process claims in their complaints, though they were not addressed by either circuit court.

Procedural Due Process requires that persons be given notice and the opportunity to be heard, before the state or federal government can deprive them of life, liberty, or property interests. These protections apply to those inside the United States, whether they are citizens or non-citizens, as well as to certain kinds of visa holders outside the country. It is not clear, however, that those protections apply to foreign nationals based outside the United States, at least in the immigration context.

If the Court decides to rule on procedural grounds, the ban will likely be held constitutionally valid with respect to those affected individuals with no ties to the United States. To be clear, the ban’s ninety-day timeline is unlikely to prevent this outcome – given the ban’s wording, it is quite possible, if not entirely probable, that the “temporary pause” in travel will become permanent against the nationals of some, if not all, of the six affected countries.

Should it go down this route, the Supreme Court will empower this president and those who follow him to discriminate against a class of individuals based on religion and national-origin, under the guise of vague national security concerns with virtually no basis in credible fact. Though many individuals may still be allowed into the country under the Court’s ruling, a foundational element of U.S. immigration law and constitutional principle will be eroded. The consequences of this are not minor.

It will mean that religious and national-origin based discrimination in modern day immigration policy will be permissible, at least in some circumstances. This would effectively return us to a pre-1965 U.S. immigration system, in which black and brown immigrants are disfavored. It would undermine one, if not the most, foundational principle of the U.S. Constitution – that the government shall not favor or disfavor any one religion. It would make American Muslims, as well as those Americans with roots in the six affected countries, even more marginalized than they are now –based on a law that treats members of their faith and national groups as presumptively suspect and dangerous. The social meaning of such a Supreme Court ruling would essentially be inescapable.

Perhaps even more troubling, a Supreme Court decision that does not confront the bias reflected in the Muslim Ban will give further credence to the notion that national security is normatively more important than civil liberties – and that a choice must be made between the two. The Muslim Ban is a rare instance in which the invidious purpose of a law is crystal clear – if “national security” wins out in this case, it does not bode well for instances where terrorism concerns more subtly (but no less substantially) discriminate against groups.

In the very first paragraph of the 4th Circuit’s opinion, Chief Judge Gregory wrote:

The Supreme Court will hopefully recognize the social, political, and legal significance of the issues involved in the Muslim Ban cases and address them in a way that is both legally sound and morally responsible. If it does not, rest assured the damage to the U.S. legal system and our society will not be limited to this one issue.

*This article was originally published on Just Security on July 6, 2017. It has been republished here, with permission.

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