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The Supreme Court may have signaled Monday how it could rule on the constitutionality of key parts of President Donald Trump’s controversial travel ban, legal experts say – and it bodes well for Trump.
In lifting most of the injunctions on the executive order, the court distinguished between foreign nationals “who have a credible claim of a bona fide” family tie to the United States and those who do not.
And in a key sentence about an injunction related to the ban’s 120-day suspension of the entry of all refugees, the court wrote: “When it comes to refugees who lack any such connection to the United States, for the reasons we have set out, the balance tips in favor of the government’s compelling need to provide for the nation’s security.”
The Harvard law professor and famed attorney Alan Dershowitz told Business Insider that the court’s sentence on refugees was critical in the ruling.
“That’s the key,” he said.
Dershowitz, who says he believes Trump’s order is constitutional, said it is now increasingly likely the court will uphold key sections of the ban.
“I do think that the court’s decision to allow the ban to go forward with regard to individuals with no connections to the United States suggests they will uphold much of the ban, the most important parts of the ban,” he said. “And this is what I’ve been saying for months now – that the court will distinguish between people with connections to the United States and people who don’t have connections to the United States.”
The executive order bars citizens of Libya, Iran, Yemen, Syria, Somalia, and Sudan from traveling to the US. Green-card holders are exempt from the ban.
The ruling allows the order’s ban on travel from those countries for 90 days, and for all refugees for 120 days, with the court’s exceptions. The White House has said the temporary ban is needed so it can review its vetting process. It is possible the ban will be no longer active by the time the court hears the case. The court asked both parties to address whether the case would be moot by then.
On the campaign trail, Trump repeatedly called for barring all Muslims from entering the US. Opponents of the ban have used Trump’s past statements to argue that it’s intended to target Muslims and violates the Constitution.
A previous version of the order also barred citizens of Iraq and did not include exceptions for people with green cards.
“It’s a complex and unusual order in a lot of ways,” Deborah Pearlstein, a professor at the Cardozo School of Law at Yeshiva University who served in the Clinton administration, said in an email. “The only thing that’s clear: Neither side of this case should come away feeling like they have any certain path to victory.”
Key for Pearlstein is whether the ban is still in effect when the court hears arguments.
“The question everyone should be asking – how much should we read this partial stay as a ruling on the merits of whether the ban is actually unconstitutional?” she wrote. “This sets up a big test of presidential power – but only if the administration decides to make its ban permanent between now and September. The court just deftly put the ball back in the president’s court.”
Trump celebrated the high court’s order, saying in a statement that the decision was a “clear victory for our national security” that would allow the travel suspension to “become largely effective.”
“As president, I cannot allow people into our country who want to do us harm,” he said. “I want people who can love the United States and all of its citizens, and who will be hardworking and productive.
“I am also particularly gratified that the Supreme Court’s decision was 9-0,” he added.
Democrats were mostly quiet about the ruling. Sen. Tim Kaine of Virginia said in a statement that he was disappointed by the decision but “encouraged that the justices maintained the ability of travelers from the affected countries to proceed so long as they have family or other connections here.”