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Op-Ed Contributor

Your Travel Ban Isn’t Safe Yet, Mr. Trump

Demonstrators outside the Supreme Court on Monday.Credit...Al Drago for The New York Times

Yesterday President Trump tweeted that he was “grateful” for the Supreme Court’s unanimous opinion on his travel ban, which allowed some of it to stand pending the court’s review this fall. But he shouldn’t celebrate just yet: The decision is a loss, not a win, a distinction totally lost on our rapid-fire media.

Read carefully, the opinion makes it clear that most of the Supreme Court justices think Mr. Trump’s executive order, which restricts travel from six Muslim-majority countries, is likely to be struck down if the court hears the case in the fall, as scheduled.

For the past six months, Mr. Trump’s ban has been on hold, battered repeatedly in a series of lawsuits. The Fourth Circuit Court of Appeals ruled that the ban likely violates the Constitution’s prohibition on favoring or disfavoring certain religions (the Establishment Clause), while the Ninth Circuit held that the ban likely violates an immigration law that prohibits “discriminating on the basis of nationality.” Both courts ruled that the ban should be suspended in its entirety.

Mr. Trump is partly correct that the Supreme Court yesterday reached a different conclusion from those of the lower courts. Pending a full review in the fall, it left part of the ban in place, but only for people outside the United States who lack a relationship — family, educational or business ties — inside the country.

The Supreme Court’s decisions are sometimes opaque, and in this opinion, there is more than meets the eye. The court made it clear that the Fourth and Ninth Circuits were correct to suspend the ban for those nationals who have “bona fide” relationships here in the country. That is a long list: families, university students and professors, business owners and partners. In drawing that line, the Supreme Court handed a major victory to the plaintiffs who brought these cases — people with families affected by the ban and the Hawaii attorney general, who sued, in part, on behalf of the state’s university and its students.

But the real blow to the administration is hiding between the lines. Already, the court’s logic suggests that it is strongly leaning toward striking down much of the ban when it hears oral argument this October. To enjoin an executive order — as the Fourth and Ninth Circuits did — a court must be convinced that the policy has a “substantial likelihood” of being illegal. By keeping some of the injunctions against the travel ban in place pending the oral arguments scheduled for the fall, the Supreme Court was indicating that it agreed with the lower courts: The justices would not have kept the lower court’s injunctions against the ban at all unless they agreed that the ban, at least in part, was likely to be found illegal.

It now seems increasingly likely that the court will eventually strike down the ban if it is still in place in the fall. In fact, Mr. Trump’s own statements might lead to its invalidation. The Fourth Circuit held that the ban likely violates the Establishment Clause because it denigrates Muslims. In two amicus briefs I organized with Micah Schwartzman and Nelson Tebbe, which were signed by a large group of legal scholars, we explained to both the Fourth Circuit and the Supreme Court how we know the policy displays an intentional animus toward Muslims: Mr. Trump and his advisers told us. Rudy Giuliani told us on national television early in Mr. Trump’s term that the president wanted to enact a Muslim ban and that he had asked him to “make it legal.” While Mr. Trump’s lawyers tried to argue the contrary, Mr. Trump continued to admit in public that he preferred the first “politically incorrect” version of the ban, a reference to limits on Muslim immigration.

In the fall, when it will likely make a final ruling on the ban, the court may endorse the Fourth Circuit’s constitutional reasoning regarding the Establishment Clause as a justification for striking it down. Or it may take a second, easier path afforded to it by the Ninth Circuit: reversing the ban on the grounds that it violates a statutory prohibition on nationality-based discrimination in immigration. The advantage of this latter approach is that it could allow the court to avoid opening contentious constitutional debates. Either way, the decision this week made clear that the court found one of these two arguments against the ban likely to succeed.

So if the court is planning to strike down the ban in its entirety, why did it bother to make the distinction at this stage between prospective immigrants with bona fide United States relationships and those without? Some justices may have reasoned that those without relationships in the United States did not reach the standard of “substantial likelihood of success” in having their legal claims against Mr. Trump vindicated — but that they could ultimately still be victorious. Or the justices might simply be unsure on this point.

In light of the historic deference shown by the court to the president, what is far more significant is that the justices kept the injunctions against any part of a sitting president’s measure at all. That tells us that in the justices’ eyes, those litigants not only might succeed, but that they likely will succeed.

It’s possible that the court will never make a final ruling on the legality of the travel ban because Mr. Trump might allow the policy to expire. The justices might want to avoid stating the obvious: The president of the United States signed an executive order based on unconscionable prejudice against Muslims. Courts generally like to avoid such direct confrontation between the branches when possible. But for those who look carefully, it is clear that the justices have already rebuked him by keeping the injunction on his ban in place for a significant segment of those who would have been affected by it.

Mr. Trump can tweet about his victory all he wants. The truth is that the Supreme Court has kept part of the injunctions against the travel ban in place, suggesting that it was likely that the president of the United States enacted an illegal policy as his signature initiative. We have a Constitution that prohibits policy based on prejudice. And we have a president who, in his indifference to the Constitution and the rights it protects, signed an executive order that violates that basic value.

Corey Brettschneider is a political-science professor at Brown and the author of “When the State Speaks, What Should It Say? How Democracies Can Protect Expression and Promote Equality.”

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