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Supreme Court Allows Part of Trump Travel Ban to Take Effect Before Ruling on Constitutionality

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The U.S. Supreme Court has announced it will allow for the partial implementation of President Donald Trump’s temporary ban on travelers from six Muslim-majority countries while the court examines the constitutionality of the order. Trump’s executive order called for a 90-day ban on travelers from Libya, Iran, Somalia, Sudan, Syria and Yemen and a 120-day ban on all refugees. The court is expected to hear oral arguments in the case in October. Three justices—Clarence Thomas, Samuel Alito and Neil Gorsuch—issued a separate ruling supporting the full implementation of the travel ban. For more, we speak with Vince Warren, executive director of the Center for Constitutional Rights, and Dahlia Lithwick, senior editor at Slate.com. She is their senior legal correspondent and Supreme Court reporter.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: The U.S. Supreme Court has announced it will allow for the partial implementation of President Trump’s temporary ban on travelers from six Muslim-majority countries while the court examines the constitutionality of the order. Trump’s executive order called for a 90-day ban on travelers from Libya, Iran, Somalia, Sudan, Syria and Yemen and a 120-day ban on all refugees. In an unsigned decision, the court said the ban could be enforced for any foreigner who lacks a credible claim of a bona fide relationship with a person or entity in the United States. The court is expected to hear oral arguments in the case in October. Three justices—Clarence Thomas, Samuel Alito and Neil Gorsuch—issued a separate ruling supporting the full implementation of the travel ban.

White House Press Secretary Sean Spicer praised the court’s decision.

PRESS SECRETARY SEAN SPICER: With respect to the Supreme Court decision on the president’s executive order, the president was honored by the 9-0 decision that allows him to use an important tool to protect our nation’s homeland. His number one responsibility as commander-in-chief is to keep the American people safe, and that’s exactly what this executive order does.

AMY GOODMAN: The ACLU’s Omar Jadwat said the court’s decision should not be viewed as a victory for the Trump administration.

OMAR JADWAT: The implication on the ground is actually not as severe, I think, as it might at first appear, because the number of people who will be affected by this narrower version of the ban is much smaller. And, you know, I think it’s a complete mischaracterization to say that this is in some way a victory for the administration. What they’re being allowed to move forward with here is really, you know, the smallest sliver, the kind of faintest shadow, of what they originally set out to accomplish.

AMY GOODMAN: To talk more about this ruling, as well as another and the speculation that Anthony Kennedy could step down at a certain point—but we’ll get to that in a bit—we’re joined by two guests. Dahlia Lithwick is with us, senior editor at Slate.com. She’s their senior legal correspondent and Supreme Court reporter. She’s joining us from Toronto today. And here in New York, Vince Warren is with us, executive director for the Center for Constitutional Rights.

Vince, let’s begin with you. Your response to the Supreme Court?

VINCENT WARREN: Well, I think that Omar Jadwat had it right. This is not the win that the administration says that it is. Although it’s troubling and problematic from the perspective of justice, when you think about where those executive orders started and what we’re looking at now, which is essentially—it is actually a watered-down version of what the administration started before—it’s really not that much of a win.

Having said that, it’s deeply troubling, I think, for the administration and the court to be able to carve off slivers of refugees and carve off slivers of people from these six countries, based on no national security justification, and say that they’re not going to be allowed into the country until the government figures out what it’s doing. It’s still a—it still violates the Constitution, and it’s still a ban on religion, and it’s racist, basically.

AMY GOODMAN: So, Dahlia Lithwick, can you first respond to the decision? And then explain what it actually will do.

DAHLIA LITHWICK: Yeah, I mean, I think what Vince says is really important. This was not a decision on the merits. And so, when you hear, you know, the attorney general or the Trump administration saying, you know, “We’ve been vindicated. The president has this broad latitude to set national security policy,” there’s actually almost nothing in the written order that we saw this week suggesting that. There is certainly a flick in the order that says, yes, you know, the president has a compelling interest in preserving national security. This was a decision about a stay. This was really a technical decision about the likelihood that the administration will succeed on the merits when this case is heard in October. So that’s important. This is a really technical ruling. It’s not a constitutional ruling.

And I think Vince is quite right that if you slice and dice who is swept in and who is swept out under this new iteration of the second iteration of the order, it doesn’t affect nearly as many folks as I think the administration was trying to keep out. But I do think that, really, now what’s going to happen is that DHS and the State Department are going to have to create some meaning. They’re going to have to explain to us what it means to have a bona fide connection to an American. They’re going to set some policies and guidelines, and they’ll try to enforce it. And the courts are going to push back. So, really, in a sense, this raises more questions than it answers, Amy, in terms of who exactly is in and who exactly is out. But we’ll find out over the summer. And the courts are going to continue, I think, to say, well, you know, yes, no, maybe, until the Supreme Court makes a final determination on the constitutional and statutory questions that underlie this whole litigation.

AMY GOODMAN: In an official White House statement, Trump applauded the Supreme Court’s action as, quote, “a clear victory for our national security.” He wrote, quote, “As President, I cannot allow people into our country who want to do us harm. I want people who can love the United States and all of its citizens, and who will be hardworking and productive.” Trump also tweeted, quote, “Very grateful for the 9-0 decision from the U.S. Supreme Court. We must keep America SAFE!”

VINCENT WARREN: Yeah, you know, I’m getting used to the Trump accolades that make things up out of whole cloth. I mean, this was—it’s not clear that this was a 9-0 decision. It was a decision on behalf of the entire Supreme Court.

Also, I mean, let’s break down what he’s talking about. Everybody wants to keep people out of the country who want to do us harm. What this—what we’re arguing in these cases, though, is that the government has made no showing that the people that they’re trying to keep out of the country are actually trying to do us harm. And this decision almost—technical decision, as Dahlia points out, almost makes it worse, that the only criteria that we have now is that the people that are not going to be allowed into the country are people that don’t have a familial relationship, don’t have an offer from a school to come here, and don’t have a job. But that keeps people out who are tourists. That keeps out school groups. That keeps out refugees who have relationships potentially with nonprofit organizations to be resettled here after fleeing all sorts of conflict. These are not people that are trying to do us harm. These are people that are largely fleeing harm or wanted to come visit this country to see what we’re doing here. It’s nothing to do with national security or terrorism. So, it’s just a—it’s the usual Trumpism that we’ve just gotten used to in this country.

AMY GOODMAN: On Monday, White House Press Secretary Sean Spicer was asked about the court ruling.

REPORTER: I wanted to ask you about the Supreme Court decision today. They—they said that anybody that has a bona fide relationship with another person or another entity is still permitted. So, in a way, it limited the initial—or, the second executive order. So I’m curious if the administration feels that what is now permitted by the Supreme Court does indeed protect the homeland.

PRESS SECRETARY SEAN SPICER: Well, again, I think it’s a positive step forward. As I mentioned at the outset, the Department of Justice, in particular, is reviewing this, in terms of both its implementation and its impact. So I don’t want to get too far ahead of all of these brilliant legal minds as they review the impact. But I think—as I noted, I think the president feels—he’s very, very pleased with the 9-0 decision.

AMY GOODMAN: So, Dahlia Lithwick, if you could respond to that and also the fact that three justices—Clarence Thomas, Samuel Alito and the newest justice, Neil Gorsuch—issued a separate ruling supporting the full implementation of the travel ban now?

DAHLIA LITHWICK: Yeah, I think that’s really crucial. I think if you listen to Sean Spicer, it sounds as though he’s saying that those three justices spoke for the entire court. And in Justice Thomas’s statement, in his portion of this, he makes it sound as though, oh, you know, it’s clear that Trump is going to win on the merits. But it’s important, Amy, to understand, only three justices felt that way. That means that there are six other justices not willing to go that far. And I think when you look at the per curiam, the order itself, it’s fairly clear to me that this is a John Roberts, Anthony Kennedy, plus the liberal justices, trying to foster some kind of compromise, where they say, “We’re going to give you a little something. We’re going to take away something. We’re going to put the whole thing on pause while we wait to see what happens in October.”

And I think the other thing that’s really worth flagging is that there’s a poison pill built into this litigation. There is this 90-day period in which this assessment needs to happen. That 90 days starts this Thursday. That means by the time the court hears this case in October, it may well, very well, be moot. And it’s worth flagging, as well, that the court, in its own decision, says, “You have to brief this mootness issue. You have to persuade us in October that the time frame of this case makes the entire thing go away.” So I really think it’s worth saying that this is changing so quickly, and that by the time the court actually hears argument on this, there may not be much left to litigate.

AMY GOODMAN: You know, the October date, when they’re going to hear the whole case, this comes after Trump’s executive order that called for a 90-day ban on travelers from Libya, Iran, Somalia, Sudan, Syria and Yemen. I think that runs out in the last few days of September. So, the Trump administration did not ask for this to be expedited, like to have the Supreme Court convene in July or something on this. So, by the time they’re ruling on this, this will have run out, Dahlia.

DAHLIA LITHWICK: Yeah, that’s exactly correct. I mean, and as I say, I think that the fact that the court wants the parties to brief that—they expressly said, “You better figure out a way that this whole thing is still live in October”—suggests to me that there are at least six justices who are pretty sympathetic to the notion that this may be over before it even begins in the court.

And again, I think it’s really, really interesting that as the new guidelines come out and as DHS and the State Department try to figure out what this nexus is between travelers and American citizens, and whether the burden of proof is on the person seeking to visit or on the government—we don’t know any of that—there will be new litigation that is immediately filed over the course of the summer, and that, too, becomes a kind of tick-tock of how relevant these underlying issues in this travel ban really are.

So, really, I think what the Supreme Court was doing—and I think it’s part of why you hear both sides saying it’s either a really big deal or a really tiny deal—is kicking it back to Trump and to the courts and saying, “We’re going to give you yet another bite at this apple, but you better impress us come October.”

AMY GOODMAN: We’re going to go to a break. Then we’re going to come back to other decisions that have been made by the Supreme Court, particularly the issue of the church and the playground—that’s coming up—and also the speculation around Justice Kennedy possibly stepping down and what that could mean. We’re talking to Vince Warren, executive director of the Center for Constitutional Rights, and Dahlia Lithwick, senior editor at Slate.com. She’s their senior legal correspondent and Supreme Court reporter. We’ll be back in a minute.

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