Listening to pundits, there seems to be two possibilities for Donald Trump’s next move with his travel ban. He can take it to the Supreme Court or he can scrap it and start from scratch. Both options have upsides. Both are also risky.
If he takes it to the Supreme Court, he can request that it’s rushed through. This puts him in a pickle with an eight-seat court. A tie would uphold the 9th circuit’s decision. If he waits for Neil Gorsuch, then his narrative of national security gets questioned. Even if he tries to push it through, there’s no guarantee that a ruling will emerge quickly. It will probably take weeks. It could take months.
The second option is to rescind and rebuild. As hard as that sounds, it may be the swiftest option. As Alan Dershowitz noted, he now has the help of the DoJ with Jeff Sessions in place. He can also appeal to Congress to participate in some way, though they’re not known as being the quickest on the draw. Dershowitz is wrong when he says that doing so will require Trump to admit he’s wrong. If he goes down this road, he’ll easily be able to say that his original executive order was righteous, but with an activist judiciary in place, he’s forced to make changes in order to keep the nation safe.
As crazy as this sounds, long-term this is a win-win for Trump. If he goes to the Supreme Court and wins, he’s vindicated. If he loses in the Supreme Court, he can start over anyway with a different order and will then have a further mandate to pack the courts. If he rescinds and revises, he’ll still be able to point the finger at the obstructionist courts. Short term, this is hurting the nation’s security, but long-term this may be best regardless of which path he chooses.
If I’m betting, I’d put my money on him pushing it up to the Supreme Court. If I’m wishing, I would love to see this prompt Congress to act quickly and put together strong legislation that would dramatically improve the vetting practices within our immigration and foreign travel systems. It would also give Trump the opportunity to put out an executive order with real muscle behind it, making the temporary ban something that has an actual end in sight with Congressional action as the goal. That’s how it should have been done in the first place.
The wildcard in all of this would be the terrorists themselves. They could easily change the calculus with an attack.
Image courtesy of Gage Skidmore.