The latest episode in the Trump administration's long-running legal battle to impose a temporary ban on travel from several nations concluded on Monday. Its result, as described by National Review's David French, was that "in a per curiam ruling, the Supreme Court restored the vast majority of the Trump administration’s temporary travel ban — including the temporary ban on refugee entry."
Much of the establishment press is nevertheless describing this major Trump administration legal victory as "partial" and "limited." Most reports are also failing to note that the ruling was unanimous.
Two Associated Press reports paved the way for the inaccurate labeling late Monday morning and early afternoon. Both reports by the wire service's Mark Sherman indicate a clear unwillingness to characterize the Court's ruling as a major victory.
The headline and opening paragraphs from Sherman's 11:07 a.m. Eastern Time report — the one which was the basis for the first broadcast announcements at subscribing AP outlets — read as follows (bolds are mine throughout this post):
Court partly reinstates Trump travel ban, fall arguments set
The Supreme Court is letting a limited version of the Trump administration ban on travel from six mostly Muslim countries to take effect, a victory for President Donald Trump in the biggest legal controversy of his young presidency.
The court said Monday the ban on visitors from Iran, Libya, Somalia, Sudan, Syria and Yemen could be enforced as long as they lack a "credible claim of a bona fide relationship with a person or entity in the United States." The justices will hear arguments in the case in October.
Trump said last week that the ban would take effect 72 hours after being cleared by courts.
The Trump administration said the 90-day ban was needed to allow an internal review of the screening procedures for visa applicants from those countries. That review should be complete before Oct. 2, the first day the justices could hear arguments in their new term.
A 120-ban on refugees also is being allowed to take effect on a limited basis.
Three of the court's conservative justices said they would have let the complete bans take effect.
Sherman's revised 1:27 p.m dispatch added verbiage which gave a voice to "opponents," tried to give them a reason to keep hope alive, and even pretended that the ruling didn't mean all that much:
... Opponents say the ban is unlawful, based on visitors' Muslim religion.
Justice Clarence Thomas, joined by Samuel Alito and Neil Gorsuch, said the government has shown it is likely to succeed on the merits of the case, and that it will suffer irreparable harm with any interference. Thomas said the government's interest in preserving national security outweighs any hardship to people denied entry into the country.
Some immigration lawyers said the limited nature of the ban and the silence of the court's liberals on the issue Monday suggested that the court had not handed Trump much of a victory. They said relatively few people would fall under the ban because people coming to study, work or visit family members in the United States already have sufficient relationships with others already is in the country.
Trump, though, hailed the high court's order as a "clear victory for our national security." He said in a statement that his "number one responsibility" is to keep the American people safe.
Sherman failed to note that despite the "silence of the court's liberals," they all either agreed with or acquiesced to the ruling. Justice Thomas made sure to note that fact at the end of his opinion. Commenting on lower court rulings earlier this year which ultimately brought the matter to the nation's highest court, Thomas also provided his observation on the ruling's true scope:
... this Court has now — unanimously — found (those rulings) sufficiently questionable to be stayed as to the vast majority of the people potentially affected.
National Review's French shredded Sherman's claim that "relatively few people would be affected," and also noted that the primary basis for lower-court usurpation of clear and constitutionally defined presidential authority was stonewalled:
The lower courts’ injunctions remain only in the narrowest of categories — where the person seeking entry has a “bona fide relationships with a person or entity in the United States.”
And what is a “bona fide relationship?” The court’s guidelines were strict ...
... Notably absent from the court’s decision is any analysis of Trump’s campaign statements. Moreover, the only dissenters from the opinion (Justices Gorsuch, Alito, and Thomas) wanted the injunctions vacated in their entirety. They are correct that the court’s ruling will invite further litigation as litigants test the boundaries of the “bona fide relationships,” but the difference between the dissenters and the six remaining justices was only over the proper extent of Trump’s legal victory. For now, the constitutional and statutory primacy of the executive and legislative branches over national security and immigration has been restored.
The judges in the courts below have been celebrated as heroic resistance figures. Yet now even the Supreme Court’s most liberal justices have rejected the lower courts’ overreach.
Most of the press is following the AP's "parts" take (and barely a "victory") on the Court's ruling:
- CNN.com — "Supreme Court allows parts of travel ban to take effect."
- Politico — "Supreme Court allows Trump's travel ban to take partial effect."
- New York Times — "Supreme Court Will Hear Travel Ban, Which Is Partly Reinstated."
- ABC News — "Supreme Court allows parts of Trump travel ban to take effect."
- Reuters — "Supreme Court breathes new life into Trump's travel ban." The opening: "The U.S. Supreme Court on Monday handed a victory to President Donald Trump by reviving parts of a travel ban on people from six Muslim-majority countries that he said is needed for national security but that opponents decry as discriminatory.")
The story at the New York Times disingenuously claimed that "those challenging the travel ban said the court’s opinion would protect the vast majority of people seeking to enter the United States to visit a relative, accept a job, attend a university or deliver a speech." Well of course, but as Justice Thomas and National Review's French noted, the ruling won't "protect" others, who just so happen to be the "vast majority" of those falling with its scope.
The New York Times also claimed that the ruling's exception for those with bona fide family or entity relationship somehow constituted "strict limits" on what the Trump administration can do, and even contended that the "liberal" justices "are likely to vote against it."
CNN, the New York Times, and Reuters failed to note the unanimous nature of the ruling. Politico and ABC did, but only by quoting President Trump's reaction, which was, in part: "Today's unanimous Supreme Court decision is a clear victory for our national security."
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The Los Angeles Times characterized the decision as a "compromise":
Supreme Court finds a compromise in reviving Trump's travel ban
The Supreme Court on Monday took a pragmatic approach to resolving the dispute over President Trump’s foreign travel ban with a middle-ground ruling that may defuse the controversy — for now.
Later LA Times verbiage tried to portray the Supremes as the outliers, describing the ruling as "handing a partial victory to the president and his lawyers after a string of rebukes in federal courts from Hawaii to Maryland." But at least the paper described that ruling as an "unsigned but unanimous opinion," something the AP should have done in its early dispatches.
Cross-posted at BizzyBlog.com.