That ban may prove much harder to challenge than the first two. In fact, the whimpering fate of the first two travel bans may say less about the resilience of the American legal system than about the incompetence of the early Trump White House. Better preparation for the ban at the beginning might have turned the result the other way.
The administration issued the order a week after Trump took office, but it seemed surprised when chaos erupted at the airports. Some passengers who lived in the United States faced immediate exclusion; lawyers swarmed the courthouses; and district judges, seeking to calm the airports, issued orders requiring the admission of the passengers. The judges had to make those decisions on the fly. Some had only minutes or hours to read the order. To most of them, I suspect, it seemed to fulfill Trump’s campaign promise of a “total and complete shutdown of Muslims entering the United States.”
The bad first impression deepened as judges read the order again and again in the next weeks. The drafters framed it as what Rudolph Giuliani called a “geographic,” not religious, order—a ban on entry from seven predominantly Muslim countries, along with a halt in all refugee admissions. But judges smelled a rat—especially in language offering entry to “minority religions,” when the geography targeted was majority Muslim.
From a legal point of view, the order was simply wretched work. There was no sign that any serious lawyer had read it, much less that it had gone through careful vetting by the departments of Justice, State, or Homeland Security. No one seemed to have foreseen that it would trap existing visa and green-card holders. An extralegal “clarification” by the White House counsel deepened the confusion: Don McGahn told Homeland Security the order didn’t apply to residents; he was apparently unaware that the counsel has no authority to vary or change a presidential order. And Justice Department lawyers told the judges that the president’s decisions on immigration were completely “unreviewable” by judges—a hard argument to sell to, well, judges. But it was all they had. The administration had kept them in the dark, too.