On June 26, just before breaking for summer recess, the U.S. Supreme Court forged a dramatic exit by issuing a per curiam opinion on the hotly debated “Protecting the Nation from Foreign Terrorist Entry Into the United States,” Executive Order No. 13780, 82 Fed. Reg. 13209, more colloquially known as the travel ban. Instead of following the trend of lower circuit courts and leaving in place a temporary restraining order, the Supreme Court struck a compromise that enabled the ban to take effect, with certain carve-outs for persons who can establish a bona fide relationship to a close relative or entity in the United States. While the ban has garnered enormous attention both in and outside the immigration law community, its most controversial attribute—an apparent intent to discriminate against Muslims—may be avoided entirely when the matter is revisited in the Supreme Court on the merits in early October.
In fact, we are highly unlikely in the foreseeable future, if ever, to have an answer to the nuanced question of whether an administration’s anti-Muslim statements, including those made on the presidential campaign trail, come to bear on a court’s determination that an executive action is motivated by religious animus. Answering this question would mean redefining the limits of the establishment clause, a claim the U.S. Court of Appeals for the Ninth Circuit briefly acknowledged before swiftly and deliberately goose-stepping it. In refraining from analyzing whether the administration’s primary intent in issuing the travel ban was discrimination against Muslims, the Ninth Circuit invoked a trusty mainstay of constitutional jurisprudence known as constitutional avoidance. The canon goes that when given the choice between issuing an opinion on constitutional grounds versus statutory ones, the court should take the path of least resistance and rule on the latter, exercising what American Foreign Services Association v. Garfinkel referred to as “judicial restraint.”
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