A panel on the 9th circuit court of appeals ruled 3-0 to keep in place a temporary restraining order that stops, for now, President Trump’s travel ban. This is likely headed to the Supreme Court, but it is important to remember that the merits of the case have not yet been decided. There has been no trial. However, even if the Supreme Court upholds the restraining order, and even if this case goes to trial and the President loses, it will be next to impossible for the Courts to stop this travel ban over the long haul.

Congress has ultimate authority on immigration. Article I Section 8 explicitly allows for the Congress “To establish a uniform rule of naturalization.“ But wait, so why does the President have so much say over immigration policy in reality? That’s because the body of law on immigration, the Immigration and Naturalization Act, gives vast discretion to the President on who to allow entrance to the country. Congress could hypothetically check the President on requiring issuance of visas and green cards, but in reality, any sort of check on the President forcing issuance of admittance would be far to broad to be practical. Congress simply is not just going to let everyone come in who wants to, in reality there needs to be some level of discretion. Congress cannot adequately provide that level of discretion, neither can the courts, only the executive can.

Enter President Donald J. Trump, fresh off a (likely) judicial defeat on his executive order to ban travel for certain individuals. The crux of the legal argument against the President’s travel order is that it discriminates on the basis of religion. It is one thing for Courts to strike down an executive order, it is another thing entirely to force the President to issue visas and green cards on a case by case, person by person basis of discrimination. In order to highlight how difficult it would be to prove someone not being issued entrance was on the basis of discrimination, we should look at McClesky v. Kemp.

The US Supreme Court decided in 1987 that despite overwhelming scientific studies that blacks were far more likely to receive a death penalty sentence than whites, this was not enough to show a “racially discriminatory bias.” This was after some of the studies showed that blacks who killed white victims were sentenced to death at nearly 22 times the rate of blacks who killed blacks. Studies further showed that prosecutors seek the death penalty for 70% of black defendants with white victims, but only 15% of black defendants with black victims. Despite all of this evidence, the Supreme Court held merely discriminatory impact was not enough. Thus even if there are overwhelming statistics that Muslims are very unlikely to be allowed in, there must be some evidence of racially discriminatory purpose. So long as there is no “policy” of discrimination (which is exactly what the 9th claimed they are striking down), it will be very difficult to prove discriminatory purpose on a case by case basis.

Another large issue is the limited judicial authority to review the admission of any alien. It well established that the constitution does not apply to non citizens that are not within the territory of the United States. (Johnson v. Eisentrager, 1950). So for instance, a non citizen who has no connection to the United States would likely not be able to sue in federal court to review a denial of a visa. Also, even if this individual was able to find jurisdiction for a federal court to hear a matter, there is plenty of caselaw that suggests the issuance of a visa is unreviewable by a federal court. (Knauff v. Shaughnessy, 1950). There are internal review measures, but ultimately, due to the power given by congress, the President has the ultimate say as to who gets in and who does not.

So while federal courts may have won the battle for this travel ban, it seems very unlikely that they will win the war. Those immigrants  who are already here, or already have green cards/visas have limited rights, but for those who are new that wish to enter it will ultimately be up to the President. It will be nearly impossible for federal courts to adequately check President Trump and force him to issue visas to people he does not want to.