Supreme Court Sets Up a Travel-Ban Punt

WMU-Cooley Law Professor Brendan Beery

Blog author, Constitutional Law expert, and WMU-Cooley Professor Brendan Beery explains in layman’s terms what the Supreme Court’s preliminary order in the travel-ban case really means and who it will most immediately affect. Professor Beery, a summa cum laude graduate of the law school, teaches Constitutional Law, Criminal Law, and Criminal Procedure at WMU-Cooley Law School, and is a frequent legal expert in the media.

It’s all about the numbers – or the dates, to be precise. Lawyers, pundits, and prognosticators will do a deep dive into what the Supreme Court’s preliminary order in the travel-ban case (agreeing to hear the case in October and allowing the Trump Administration to partially implement the ban in the meantime) means about the Court’s view of the ban’s legality. But the discerning reader can see what the Court (per Chief Justice Roberts, in all likelihood) is really up to. The Court is wriggling out of having to address the ban’s legality in the first place.

The Court’s ruling was a mixed bag for people from the six banned countries wishing to enter the United States. The Court kept in place a lower-court injunction forbidding Trump Administration officials from excluding people with close family ties or legitimate business or educational concerns involving travel to the United States. The bad news for opponents of the travel ban is that, because the Supreme Court lifted the injunction on part of the ban, it will now operate to bar entry into the U.S. by anybody without family or business ties here. That impact is leavened, of course, by the reality that very few people without family or business ties to the U.S. wanted to come here anyway. (In other words, this is not the total victory that Donald Trump will likely represent it to be.)

The people most immediately and directly harmed by the Court’s order are would-be refugees. Refugee designation alone will no longer entitle refugees from the six affected countries to entry into the U.S. They too will have to show some kind of family or business interest to get around the travel ban.

But here’s the rub: the travel ban (contained in Section 2(c) of Trump’s executive order) has an expiration date built into it. Trump’s stated purpose for imposing the travel ban (which lower courts called pretextual) was to give the federal government time to analyze other countries’ immigration controls, make findings of fact, allow other countries to respond, and then adopt appropriate screening protocols for use by federal agencies. No lower-court order stopped the administration from doing any of that while the travel ban portion of the executive order was being litigated.

Since the supposed purpose of the travel ban was to buy time to study a problem and implement solutions, the ban was only to last 90 days “from the effective date” of Trump’s executive order. The original effective date was March 16, so the ban would have lapsed by mid-June. Once that date approached, however, Trump issued a new directive purporting to amend the effective date; he said that the new effective date would be 72 hours after the injunction against his travel ban (the one imposed by lower federal courts for the last few months) was lifted.

It’s not clear that the Supreme Court has bought into Trump’s new effective date; the Court, without any prompting, ordered the parties to the lawsuit to draft arguments about whether the legality of the travel ban became moot on June 14 – the date the ban was originally to expire. The justices must be considering, then, whether Trump’s attempt to extend the ban was valid.

But notwithstanding the question whether the extension was valid, the Court did today lift the injunction against the travel ban – at least in part. That means that the clock starts ticking on Trump’s new 90-day time period on Thursday morning – 72 hours after the injunction was lifted. The Court is set to hear arguments in the case in early October. By then, just over 90 days will have elapsed, meaning that even under Trump’s new timetable, the ban will have expired yet again.

Look where that leaves us: whether the ban’s legality was rendered moot when it was originally set to expire (June 14) or by the expiration of the new timeline (in late September), by the time October rolls around, the Court will be in a position to say that the administration has had ample time to get its act together as to screening immigrants, every conceivable deadline for ending the ban has passed, and the case is moot. This assumes, of course, that the wild card in all this – Donald Trump – doesn’t try to change the effective date again by October, or issue a new executive order altogether. If he does that, though, the Court will likely lose its patience with him.

By inviting the parties to address the mootness issue without prompting, the Court clearly signaled that it will use the issue of mootness to avoid having to address the merits of the case. One can see why the Court would do that: were it to rule on the merits, the Court would have to address whether the sitting President was behaving lawlessly and whether he was acting with animus in discriminating against Muslims. While those are fair subjects for public debate, the Supreme Court usually likes to stay out of such unseemly political fights. By giving each side in the fight half a win and running out the clock, the Supreme Court has signaled what it is likely to do on the merits of the travel ban: punt (and hope that Trump’s mischief-making in this regard is at an end).

Watch Brendan Beery’s Salon.com interview.

Listen to Professor Beery’s interview on the Tom Sumner Program (Interview starts at 6:58).

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