The real winner in the travel ban decision


At last, the Supreme Court has spoken. After 17 months, hundreds of pages of lower court rulings and three versions of President Donald Trump’s travel ban, the high court has ruledon the ban, upholding Trump’s signature campaign promise.

Already, pundits are focused on what the court decided and how the different justices reached their various conclusions. But, regardless of the court’s decision, the real winner here is the rule of law.

More specifically, it’s the process that led to this moment that vindicates the rule of law. As this saga began with Trump’s issuance of the first travel ban a week after Inauguration Day, the President of the United States invoked national security — and the threat of terrorism, in particular — to justify a decision he claimed was necessary to protect America.
What’s more, his lawyers argued there was no role for the courts to play in scrutinizing the lawfulness of the President’s dramatic overhaul of US immigration policy — not even whether it ran afoul of the Constitution. But the federal courts refused to be cowed by Trump’s lawyers.
To the contrary, courts across the country struck down Trump’s first travel ban and then his second, too. This forced the President, by his own admission, to depart from the ban he really wanted and replace it, twice, with bans that came closer, at least in certain ways, to the constitutional mark, such as by clarifying they did not apply to green card holders and by providing more of a description of the reasoning behind them.
As courts evaluated the first, the second and eventually the third ban, judges consistently refused to accept that they simply had no role to play in assessing the lawfulness of what the President had done.
They also refused to defer to Trump’s mere invocation of national security to justify his actions. Instead, those judges scrutinized carefully whether the Trump administration had the factual and legal predicates necessary to justify his unprecedented assertion of sweeping executive power over immigration.