After months of drama, airport chaos, emergency court orders, shifting policies, and the confirmation of Donald Trump’s choice to join the Supreme Court, the highest Court in the land will finally weigh in on Trump’s Muslim ban. A decision, at least on a very significant preliminary matter, is likely to come this week.
Last month, a federal appeals court handed down International Refugee Assistance Project v. Trump, holding that Trump’s longstanding practice of bragging that he intends to implement a Muslim ban demonstrates that an executive order he signed — which prevents many people from six majority Muslim nations from entering the country — was in fact a Muslim ban.
The Trump administration argued, unsuccessfully, that the appeals court must defer to Trump’s stated reason for issuing the order — national security — under the Supreme Court’s 1972 decision in Kleindienst v. Mandel. In a more recent opinion, however, Justice Anthony Kennedy wrote that such deference is not appropriate when an executive branch official acts in “bad faith” (such as when that official claims that they are issuing an executive order for one purpose after bragging about doing it for a different purpose — repeatedly, over a period of more than a year).
In any event, the Trump administration asked the Supreme Court to review the lower court’s decision a little more than a week ago. More importantly, it asked for an immediate order staying the lower court’s decision and allowing the Muslim ban to take effect. Shortly after receiving this request, the Court directed the plaintiffs in this case to file a response, and that response is due on Monday.
Though it may be a little while before the Court announces whether it is hearing the case on the merits, the justices are likely to rule on the stay fairly quickly. Indeed, a ruling on the stay is likely to come as soon as this week.
Especially if the Court decides to grant the stay, that decision is likely to reveal as much about how the justices view the Muslim ban as their final decision on the merits. Such an order would suggest that a majority of the Court agrees with Trump that the Muslim ban has a valid national security rationale — or at least, that they believe that courts must defer to Trump’s stated rationale even if that rationale was offered in bad faith.
Trump’s Muslim ban order, it is also worth noting, only purports to be a 90-day travel ban. So a decision staying the lower court would allow that order to take full effect for those 90 days even if the Court ultimately decided it was illegal. (Trump, of course, could extend the ban beyond 90 days if the Supreme Court backs him.)
Though Trump’s opponents have largely celebrated the judiciary’s actions to keep Trump in check, the Supreme Court has not yet weighed in on Trump’s most controversial actions. The median justice, moreover, is much more conservative than most of the judges who have considered Trump’s Muslim ban.
There is a very real chance, in other words, that America is about to learn that it cannot count on the courts to rein in this president.