At the height of the furor over President Trump’s third attempt to pass into law his campaign-promised Muslim travel ban, a federal appeals court unanimously ruled the ban to be in violation of the Constitution. The ruling will not take effect, however, until the U.S. Supreme Court has reviewed a likely appeal.
The three-judge panel drawn from the U.S. 9th Circuit Court of Appeals stated that President Donald Trump had exceeded the limits of his authority by ordering more than 150 million foreign nationals, predominantly from Muslim countries, be barred from entry to the United States.
The panel’s primary areas of contention with President Trump’s order stem from the fact that the ban nullifies standing federal immigration law passed by Congress. The wording of the opinion from the 9th Circuit is very specific, however, and seeks to limit the Trump administration’s desired injunction by ensuring, in particular, that the ban ‘not be enforced against those who have a “bona fide relationship” to a person or entity in the United States.’ Such a limit would at least avoid the worst-case scenarios of individuals stranded at the border when trying to visit or return to close family in the United States, or students with a formal relationship with a university or U.S.-based employees of a corporation.
There are a couple of factors driving confusion here. First, although it’s true that the 9th Circuit Court ruled the travel ban unconstitutional, they did leave open the possibility for a reversal by saying their ruling would or could be superseded by a decision from the Supreme Court in a likely appeal.
Second, although this panel of three 9th Circuit judges ruled the ban unconstitutional, other judges in the same circuit but not hearing this case dissented, creating the impression of a divided voice and opinion.
Third, constitutionality is subjective, not objective. Rather than a strict logic test or mathematical formula, constitutionality is based on and defined through legal precedent, analysis, and case law.
So, a dissenting opinion is just that—a dissenting opinion—and not a black mark against any future argument regarding a piece of legislation’s constitutionality.