Ever since a “so-called judge” in Washington State issued a nationwide injunction against President Donald Trump’s ban on entry by foreign nationals from seven predominantly Muslim countries, the courts have played a critical part in checking the president’s constitutional excesses. The Supreme Court, however, has yet to assess the travel ban. That will change this week, when the court hears arguments in a challenge to the third and latest version of the ban. (The ACLU, where I serve as National Legal Director, has been counsel in successful challenges to all three versions of the ban, including one now pending before the Supreme Court.) The case most directly implicates the rights of Muslims, here and abroad, singled out for disfavored treatment by a president who promised to do just that as a candidate. But because the administration has argued that the court must blindly defer to the president, the dispute equally concerns the very role of the court in the separation of powers.After federal appeals courts in California and Virginia struck down the second travel ban, finding it both unconstitutional and in violation of the Immigration and Nationality Act, Trump initially appealed to the Supreme Court, but then issued yet a third version of the ban shortly before the court was scheduled to hear argument. In light of this development, the court sent the cases back to the lower courts to consider the legality of the third and latest executive order. This version was ostensibly predicated on a study that Trump had ordered the Department of Homeland Security to conduct, examining how visas are granted to foreign nationals of every country. The DHS review committee was headed by Frank Wuco, a White House senior adviser who had previously stated that to “stop the visa application process into this country from Muslim nations in a blanket type of policy” was one of several “great ideas.”
