Hawaii raised its profile nationally with the state’s initiative to challenge President Donald Trump’s executive order, otherwise known as the “travel ban.” Despite the U.S. Supreme Court’s decision to lift part of the legal hold on the order, the lawsuit did succeed at clarifying judicial guidance, clearing the way for those with U.S. ties to enter the country.
The controversial ban, which cites national-security concerns, was issued March 6; it superseded an earlier one that had caused a maelstrom of confusion at airports around the world. The order, halted through a court stay, imposed a freeze on new visas from six Muslim-majority countries: Iran, Libya, Somalia, Sudan, Syria and Yemen. Citizens of those countries were to be restricted from U.S. entry for 90 days; refugees would be barred for 120 days.
On Monday, the U.S. Supreme Court indicated it would look at the travel ban, reviewing rulings by two lower appellate courts — the 4th Circuit, for a case originating in Maryland, and the 9th Circuit, which sided with Hawaii’s challenge.
That will happen as part of the high court’s fall term, starting in October. In the meantime, however, the justices decided to allow the Trump administration to implement its order, freezing the issuance of visas to those who have no established point of contact in the United States.
But the court also decided that, for the duration of the order, for those with established U.S. links, the ban would not apply. This would mean, to cite just one example, that a co-plaintiff in the Hawaii case, Ismail Elshikh, the imam of the Muslim Association of Hawaii, would be able to host his mother-in-law from Syria.
Also, students admitted to the University of Hawaii would not have to wonder whether they’d make it back to class after travels home. Faculty members at UH, and employees with green cards throughout the local economy could carry on with travel plans. These are all positives.
Attorney General Douglas Chin, in arguing the Hawaii case, asserted that the ban also posed a threat to Hawaii’s tourism economy. Quoting the complaint:
“The Executive Order bars students, tourists, family members, and other visitors from the State on grounds that Congress and the Constitution have expressly prohibited. It is damaging Hawaii’s institutions, harming its economy, and eroding Hawaii’s sovereign interests in maintaining the separation between church and state as well as in welcoming persons from all nations around the world into the fabric of its society.”
The arguments as refined by the appellate courts took slightly divergent paths. The 4th Circuit drew a connection between the order and the president’s intent, as stated during the 2016 campaign, to categorically ban Muslim travelers, finding that in conflict with the U.S. Constitution. The 9th Circuit concluded instead that the order went beyond the authority to regulate immigration that Congress gives the president by statute.
It’s not clear what action the court may take in its fall session, whether the justices will side with either argument, or whether the bans themselves would have expired.
The president does have wide latitude in setting immigration policy, but it is not limitless. The Trump administration says there are national security reasons for selecting the travel-ban targets, and a need to improve the vetting of travelers from these nations, some of which are considered failed states with inadequate surveillance.
Even so, the president does owe the nation a full explanation of how he intends to improve that vetting by U.S. agencies, what reforms are suggested by the administration’s review of security procedures during the ban period.
Only if the safety of the U.S. homeland can be raised will this order prove to be wise policy rather than xenophobic political posturing. America’s foundational standing as a welcoming haven hangs in the balance.