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Monday, June 26, 2017

The travel ban endgame (SCOTUS Symposium)

Among its other interesting end-of-term work today, the Court issued a per curiam cert. grant/stay in Trump v. IRAP, the travel ban case. As Steve discusses below, the Court stayed the injunctions in part but left them in place "with respect to parties similarly situated" to the plaintiffs. The Court also ordered "a briefing schedule that will permit the cases to be heard during the first session of October Term 2017," noting that "(The Government has not requested that we expedite consideration of the merits to a greater extent.)"

Now here is where I get a little puzzled.

Constant readers will recall a disagreement that Marty Lederman and I had about whether the challenges to the executive order were going to become moot on June 14. On June 14, the President issued a memorandum clarifying (or amending, if necessary) "the effective date of each enjoined provision to be the date and time at which the referenced injunctions are lifted or stayed with respect to that provision." This was supposed to stop the mootness problem, and the Court today also ordered the parties to brief "Whether the challenges to Section 2(c) became moot on June 14, 2017."

But is there going to be a new mootness problem? After all, 90 days from today is September 24th, which is before the Court will hear argument and decide the cases. Marty Lederman says yes:

[T]he case will be moot for two ... reasons: For one thing, the 90-day entry ban goes into effect 72 hours from now, at least as to some aliens (see below), and thus it will expire by its terms on September 27. Moreover, as the Court explains, by October the Section 2 “internal review” should be completed (“[W]e fully expect that the relief we grant today will permit the Executive to conclude its internal work and provide adequate notice to foreign governments within the 90-day life of §2(c).”), and therefore the predicate for the entry ban will be kaput by then, too.

What is weird is that the Court doesn't come out and say this exactly. It says:

In light of the June 12 decision of the Ninth Circuit vacating the injunction as to §2(a), the executive review directed by that subsection may proceed promptly, if it is not already underway. EO–2 instructs the Secretary of Homeland Security to complete this review within 20 days, after which time foreign governments will be given 50 days further to bring their practices into line with the Secretary’s directives. §§2(a)–(b), (d). Given the Government’s representations in this litigation concerning the resources required to complete the 20-day review, we fully expect that the relief we grant today will permit the Executive to conclude its internal work and provide adequate notice to foreign governments within the 90-day life of §2(c).

A few questions for now:

1. When does Section 2(c) currently expire? The Court refers to "the 90-day life of §2(c)," without explicitly spelling out when that is. The Presidential memorandum, mentioned above, says that "the effective date of each enjoined provision" is "the date and time at which the referenced injunctions are lifted or stayed with respect to that provision." But what if the injunction is stayed in part, as happened today? Does that trigger the effective date? Or does it trigger it only "in part," so that each provision of the ban will now have two effective dates, one for the plaintiffs and other beneficiaries of the injunction and the other for the rest of the world?

2. Even if Section 2(c) doesn't technically expire, what happens to it once review is complete? I think Marty is right that the travel ban will be much harder to justify at that point. Will the government realize this, and stop enforcing the ban? And if not, isn't the government giving the Court the worst possible vehicle for its claims?

3. Why didn't the Court say more about the endgame it seems to have deliberately set up? It does rather seem as if the effect of today's ruling is to schedule the case for an argument date that it will never reach, and to order the parties to brief a mootness question that will itself be moot, while ignoring the mootness question that will be more relevant in October. So if the Court means "that earlier talk of briefing schedules and additional questions was just for show," this is a funny way to say it.

4. What is the President's next move?

Posted by Will Baude on June 26, 2017 at 07:00 PM in 2018 End of Term | Permalink


It may in fact give suspicious/questioning members of the Court to put the question the Government as to whether it's aim has been achieved. Specifically, some justices are likely to ask the very question of whether the matter is moot because the Government's completed its work or if in fact the timeframe that is contained in the EO was merely a lie.

Posted by: Adam | Jun 27, 2017 12:25:29 AM

I think it might be as simple as this: All of the action was regarding the next 90 days. The Court wanted to affirm the injunctions for the most part, but cut them back as to aliens without U.S. ties (for difficult-to-explain reasons). The only way to tailor the P.I.'s however, was to grant the cert. petitions, because the applications were merely for stays *pending appeal.* The tail was more important than the dog here (does that metaphor work?)--but dealing with it depended on creating the fiction that the Court will deal with the whole dog eventually, although everyone knows it won't.

Posted by: Marty Lederman | Jun 27, 2017 12:00:29 AM

Well I don't suppose, as to #3, that the Court would prospectively anticipate mootness or give away what it's possibly up to (engineering mootness before argument so that they can Munsingwear everything and these uncomfortably politicized cases go away). Especially since, as you say in #2, the ban's legality probably won't really be moot after ninety days because parts of it will never have become effective (though it will become very difficult to defend, at which point the government may give up, but that's not mootness or something the Court could possibly talk about in advance - what would they say, "we advise you to quit defending this thing once the review period runs, or at least we expect you will"?), and because it is open to the President, after the review period runs, to say that the review didn't turn up any great solutions yet and they need more time to review, such that it would be premature to anticipate mootness now. Whether it's appropriate for the Court to hear the case at that point or let lower courts decide the constitutionality of that new extension in the first instance given the President's new explanation about what happened in review and the security risks that justify an extension, I don't know. Normally, no, it wouldn't be appropriate, but in this instance I think it would be, or at least I suspect that they'll think so.

Posted by: Asher Steinberg | Jun 26, 2017 11:15:56 PM

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