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.”

Constitutional avoidance led the Ninth Circuit away from the establishment clause to a discussion of delegated ­executive power under the Immigration and Nationality Act (INA) and a debate about statutory construction. Congress, through the INA, delegated enormous power to the president to suspend the entry of all aliens or any class of aliens if their entry is found to be detrimental to the United States. But later versions of the INA explicitly preclude discrimination against aliens on the basis of “race, sex, nationality, place of birth or place of residence” in the issuance of immigrant visas, which plaintiffs in this matter argue places clear limits on a president's ability to enforce executive orders against entire nations.