Editor’s Note: Joshua A. Geltzer is executive director and visiting professor of law at Georgetown University Law Center’s Institute for Constitutional Advocacy and Protection and a fellow at New America. He previously was senior director for counterterrorism and deputy legal adviser at the National Security Council. The views expressed in this commentary are his own.
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 ruled on 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.
Even at the Supreme Court – traditionally willing, even eager, to defer to a president when he invokes national security – Trump’s lawyers faced hard questions and a refusal by the justices simply to accede to the government’s claims of national security needs. The court would be neither sidelined nor silenced; rather, it played its critical constitutional role of scrutinizing the executive branch, and it refused to treat Trump’s claims of national security as sufficient for the court to yield to the President.
So, when it comes to the health of our constitutional system, it’s not the court’s decision on the travel ban that matters most. Instead, it’s the process that led to that decision. It’s a process that has vindicated, first, a legal system in which ordinary citizens may sue the President and challenge in court his actions; second, a federal judiciary whose role in defending the Constitution has never been more vital than it’s proving today; and, third, the rule of law itself.
All of that bodes well for the future. This 17-month drama suggests that, wherever the President may try to go next with his travel ban and other policies justified, however dubiously, in the name of national security, he will have to reckon with the federal courts.
That’s a particularly important takeaway given Trump’s escalating insistence on invoking national security to justify so many of his policies, from his assault on local law enforcement’s efforts to build trust with all communities they serve to his protectionist trade policies that are sparking trade wars across the globe, even with America’s closest allies.
The process that led up to the court’s decision demonstrates that, as these policies continue to face important legal challenges, the courts will not give Trump a free pass on them simply because he insists on excusing every action with the language of national security.
That makes the real winners in the travel ban litigation the American people. That’s because, when the rule of law triumphs, we and the Constitution we cherish are all more secure.