On Wednesday, the Supreme Court will finally take a look at President Donald Trump’s argument that he possesses the rightful legal authority to ban entry of travelers coming from dangerous countries with a history of terrorism and animus towards the United States. The controversial moratorium – called a “Muslim ban” by the president’s detractors – has been a magnet for protests and lawsuits since it was first enacted within weeks of Trump’s inauguration. While it has taken several forms since that initial ban, courts have found reasons to block them all. The Supreme Court, meanwhile, has bitten back on at least some of these decisions, if only to allow the bans to play out while the court cases proceed.
For critics challenging these bans, much of their legal power comes from Trump’s campaign trail rhetoric. In December of 2015, then-candidate Trump called for a “total and complete shutdown of Muslims entering the United States” in the wake of the tragic San Bernardino terrorist attack. Lawsuits against the administration claim that by targeting Muslim-majority countries like Syria and Iraq, the president is trying to enforce a Muslim ban without actually calling it that. They argue that he is in violation of the First Amendment and cannot proceed with a bigoted foreign policy order.
The Trump administration, meanwhile, is arguing that many non-Muslim countries have been included on the latest of these bans and that, furthermore, many Muslim countries were NOT included in the bans. And, they say, the courts cannot use Trump’s campaign rhetoric to make rulings on an executive order that does not reference a Muslim ban. They must make their decision based on the text of the ban itself, the limits of presidential authority over immigration, and the solid case the administration has made regarding the dangers of travelers from these countries.
The importance of this case cannot be overstated. Even Trump’s critics admit that if he had not called for a Muslim ban on the campaign trail, it would have been difficult for the courts to find any reason to block the administration’s original order. The president does not have to consult with Congress, state governors, activist judges, or Muslim groups before exerting his authority over incoming visitors to the United States. The logic behind the ban is sound and the laws carving out Trump’s dominion are clear. For the Supreme Court to rule against the administration would be to make a farce out of the justice system and give the left carte blanche to turn the courts into a political free-for-all.