On September 17, I will be presenting “The Travel Bans” at Cato’s annual Constitution Day celebration. This will be my third article published in the Cato Supreme Court Review. For the first two cases (McDonald v. Chicago) and Texas v. U.S.), I was disappointed the Court did not follow my advice. Alas, for the third case (Hawaii v. Trump), I’m remiss that the Court followed by advice.
Here is the abstract:
Historically, most landmark cases that present foundational constitutional questions trickle up to the Supreme Court over the course of several years. During that deliberative process, advocates on both sides could develop arguments and implement a carefully-crafted litigation strategy. Other landmark cases race to the Supreme Court following major crises. These latter cases arose out of true exigencies: the judiciary was forced to mobilize in response to an emergency that the other branches were unable to resolve.
Trump v. Hawaii fits into neither category: the legal issues were not difficult and the circumstances were not exigent. Without question, the president has the statutory and constitutional authority to deny entry to aliens from certain countries based on national-security concerns. Yet, the judiciary still moved at warp speed to halt President Donald Trump’s signature policies. Why? The “travel bans”—which denied entry to aliens from predominantly Muslim nations—traced their roots to overtly anti-Muslim statements made by then-candidate Trump. Furthermore, the government could only offer the faintest patina of a rational basis to defend the policies. Confronted with these facts, the lower courts uniformly enjoined the travel bans. Ultimately, only the Supreme Court upheld the final version in its entirety. This essay recounts the travel bans’ 18-month litigation blitz.
This contribution to the Cato Supreme Court Review provides an early assessment of Trump v. Hawaii. Part I discusses the first iteration of the travel ban, which President Trump signed one week after his inauguration. Part II dissects Travel Ban 2.0. Part III introduces Travel Ban 3.0, which was announced in September 2017. This policy—designed to be permanent—was promptly challenged in district courts. Once again, nationwide injunctions were affirmed by the courts of appeals. Yet, in December 2017, the Supreme Court permitted the entire policy to go into effect. This decision was a conclusive indication that the lower courts had gone astray. As a result, there should have been no surprises when, in June 2018, the Supreme Court upheld the third iteration in its entirety. Now that this saga has drawn to an anti-climactic close, Part IV places the travel ban in perspective.