It’s a non-legal, totally unqualified, and not even close to humble opinion:
Even the limited ban the Supreme Court allowed Trump’s administration to impose on traveling Muslims is unconstitutional. I believe this because of the reasoning behind lower courts’ injunctions so far. Trump clearly intended religious discrimination in implementing it. Regardless, SCOTUS did side with Trump a few days ago. They allowed parts of the ban to take effect. However, there were exemptions to the ban, and that’s important for two different reasons.
Number one, it’s an example of a conservative-packed court making law, in line-item allowances and court-related definitions. That, of course, is anathema to everything Republicans have stood for in nominating justices since partisanship blew up under Reagan. The Right contends that the judicial branch exists solely to interpret the law. Apparently, that opinion extends only to cases that involve liberal interests.
But secondly, and I believe, more importantly, exemptions provide a measure of rope with which the Trump administration can hang itself. And within an hour of the ban taking effect, TrumpCo was busy tying nooses.
At issue is the fact that SCOTUS allowed exemptions to the ban for those with a “bona fide relationship” with a person or entity in the United States. This obviously means family (a “close familial relationship” in the Court’s terms) in the U.S., but clearly, can extend past that narrow definition. The non-clarified ruling left it up to Trump’s State Department to issue guidelines. Those guidelines are where Trump may be running afoul of the intent of the SCOTUS decision.
It’s a matter of style.
Because Trump has felt all along that he should be able to unilaterally issue orders — and one wonders whether he takes the word “order” at a higher value than a president ought to — it was natural that the boundaries on the Court’s decision would be pushed immediately. So Trump decided to define “relationship,” “family,” and “entity” all at once in the State-issued guidelines. If you’re an NPR listener, you already heard it on the radio just hours before the ban took effect: “A stepsister is okay, but a grandmother is not.”
Fiancés were not exempt, nor uncles, sisters-in-law, or cousins. All these relationships were designated to not be “close” or “familial” enough. Conversely, a teacher traveling to give a lecture has a “bona fide” relationship inside the U.S., but refugee — even one with a caseworker already assigned, even whose case is near to completion — does not.
The same judge in Hawaii that heard and upheld an injunction against the ban previously is now considering a ruling on whether Trump’s guidelines defy the intent of the SCOTUS decision.
The first weapon in the State of Hawaii’s arsenal, if I may recommend one, should be the fact that late Thursday night, Trump reversed his position on fiancés. They now are exempt from the ban. Which means that any inclusion on the list is completely arbitrary.
Featured image via Zach Gibson/Getty Images