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There are four months until the Supreme Court hears the case on President Trump’s travel bans — and a lot can go wrong in that time.
The court on Monday decided to take the case in October, leaving only part of Trump’s executive orders in place until then.
In the meantime, Trump will have to bulletproof an argument that already failed to sway federal judges: That his ban on travelers from six majority-Muslim countries is a national security necessity, not an act of discrimination.
Here are the major points to consider as the case heads to the nation’s highest court.
Trump being Trump
Trump already sank his travel bans in federal courts by simply talking about them too much — giving plenty of ammo to shoot down his own executive orders.
The federal judges who halted the bans cited Trump’s tweets and public statements — particularly his campaign call for a “total and complete shutdown” of Muslim immigration — as evidence that the orders are intended as discrimination, even if he argues otherwise.
Just this month, an appeals court upheld an injunction on the bans and quoted in its decision a Trump tweet from the previous week, which read, “That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some political correct term that won’t help us protect our people!”
Trump will now have to watch what he says for four months — or he could hurt his case once again.
“The biggest battle is going to be to take the President’s Twitter out of his hands and his foot out of his mouth,” Norm Eisen, chair of Citizens for Responsibility and Ethics in Washington, told the Daily News.
“His tweets and comments speak very powerfully to his intent.”
How the partial ban will work
The court’s decision on Monday halts a central part of the bans, saying that no foreign national who has “a bona fide relationship with a person or entity in the United States” can be kept out.
However, the ban can now be enforced for foreigners who have no direct ties to the United States.
That will hardly make things any easier.
Until October, there will inevitably be new legal battles of what exactly constitutes a “bona fide relationship” for entry, and how that gets decided.
Three justices — Neil Gorsuch, Samuel Alito and Clarence Thomas — wrote that they would have allowed the ban to be enacted in its entirety to avoid such confusion.
“Today’s compromise will burden executive officials with the task of deciding — on peril of contempt — whether individuals from the six affected nations who wish to enter the United States have a sufficient connection to a person or entity in this country,” Thomas wrote in an opinion for the trio.
“The compromise also will invite a flood of litigation until this case is finally resolved.”
The status of those expected cases could have major — and unpredictable — effects on the eventual arguments.
The case could also be tipped if the partial ban is anywhere near as chaotic as the initial ban rollout, which led to airport hassles, massive protests and civil lawsuits nationwide.
Will we be safe until October?
By delaying the case until October, the court has already waved off one of Trump’s biggest arguments: That the ban needs to start as soon as possible to keep the country safe from terrorism.
“The fact that they’re basically not allowing the ban indicates that they don’t believe the argument that the nation is being irreparably harmed by the delay,” said Douglas Kmierc, a Pepperdine University law professor who worked for the Justice Department under Presidents Ronald Reagan and George H.W. Bush.
“The urgency seems a bit less than real.”
When federal courts blocked the bans, Trump preemptively blamed the judges for any terror that might erupt in America.
“Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!” he tweeted in February.
The legitimacy of the bans, then, could hang on national security.
If October comes and there have been no attempted or successful terror attacks, Trump will have a harder time showing there is a need for his demands.
If there is a major attack, though, Trump’s travel bans could arrive in the Supreme Court with more firepower than ever.