The Trump administration finally got some good news from a federal court Monday. In the twin cases challenging the president’s executive order barring entry into the U.S. by nationals of six majority Muslim countries, the Supreme Court handed the government a genuine but very partial victory, with a hint of more to come.
But the victory was limited in a way that anyone who has ever been 12 years old will understand. The court didn’t say the government could never have a pony. But it didn’t say the government could have a pony either. Instead, it said, “If you still want a pony next October, we’ll see.”
The ambiguity arises because, as Georgetown Law professor Martin Lederman pointed out within minutes of the decision, the court merely granted review, and delayed actual consideration of the case until the opening of next October’s term—by which time the specific issue will most likely be moot. At the same time, the interim order preserved the important victories won by many of those actually harmed by the travel ban—family members of American citizens or residents, foreign students at American universities, and potential foreign employees of American corporations.
The administration had been losing badly at every turn in the lower courts—before district courts in Maryland and Hawaii and appeals courts in the Fourth and Ninth Circuits. The Fourth Circuit contemptuously rejected the administration’s claims of good faith and the Ninth argued that the order exceeded the president’s statutory authority. Both opinions were, to say the least, acerbic.
So the dispassionate tone of Monday’s per curiam opinion must have been soothing to administration ears. Dryly the court summarized the arguments and the lower courts’ conclusions—that the ban violates the Establishment Clause of the First Amendment (Fourth Circuit) and the Immigration and Nationality Act (Ninth Circuit). It then gave a respectful nod to the government’s claim that the order is a matter of national security rather than religious bigotry: “The interest in preserving national security is ‘an urgent objective of the highest order,’” the opinion said.
But the per curiam formally expressed no opinion on the issues. Instead, it ordered the full case to be heard “during the first session of October Term 2017”—four months from now. The court clearly hopes—and strongly hints—that the case will be moot by then.
The order, remember, was issued on March 6 and was to take effect March 16. It proposed to bar any entry—whether as visitors or immigrants—of nationals of six majority Muslim countries. It also slashed the number of authorized refugees who could enter to 50,000 a year, from the previous ceiling of 110,000, and barred admission of any and all refugees from Syria.
The rationale for the order was that the named countries were hotbeds of terrorist activity. Thus, the U.S. could not be sure that their nationals would not commit acts of terrorism in the U.S. The order, however, was strictly temporary—for 90 days after the order took effect, just long enough to allow the Department of Homeland Security to determine whether the U.S. had the information it needed to screen immigrants and visitors from the named countries. If not, the U.S. would ask those countries to supply the information it needed and assess their response.
The order never took effect; within hours, lower courts had stayed it in its entirety. The administration was forbidden to bar entry of nationals of the six countries; could not reduce the number of refugees admitted from 110,000 to 50,000; and could not bar refugees from Syria. The district court in Hawaii even stayed the provisions requiring an internal review of immigration procedures—a restriction of extraordinary breadth that was removed by the Ninth Circuit on June 12.
As they came to the court, the cases posed issues of great importance and startling novelty. Does the Establishment Clause even apply to issues of immigration and claimed national security? Can foreign-born Muslims lawfully inside the U.S. invoke the Constitution when an order harms family members outside it? Can a reviewing court actually consider political campaign statements—or presidential tweets—to determine discriminatory intent in a seemingly neutral order? Does the INA truly require the executive to make detailed formal “findings” before restricting entry of a class of aliens? Does the Refugee Act of 1980 really require the president to notify and formally consult Congress before changing the previously announced total of refugees to be admitted in a given year?
These issues would be difficult enough in a normal year. But we are living in 2017, and the president issuing the order is Donald Trump, who is decidedly not a normal president. Trump’s racist and Islamophobic rhetoric, his threats against judges and the federal courts generally, and his remarkable tweets contradicting assurances made to the court by his own lawyers, all may combine in the justices’ minds to make the possibility of a wrong decision, and bad law flowing from it, seem even greater.
So maybe the whole thing could just ... go away? That’s the wish expressed by the court. For one thing, the per curiam noted that the order, by its own terms, became effective March 16, and thus “expired” on June 14. On June 14, Trump issued a memorandum stating that the “effective date” should be read to mean the day on which courts allow the order to take effect. The court, however, rather pointedly added a “question presented”: “Whether the challenges ... became moot on June 14.”
The opinion also noted that the executive branch is now, courtesy of the Ninth Circuit, free to complete the promised studies. In Section 2(b) of the order itself, the study is supposed to be completed “within 20 days of the effective date of this order.” Said the Court Monday, “the executive review directed by that subsection may proceed promptly, if it is not already underway. [The order] 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. … 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).”
In other words, by October there may be no case, no order, and no national-security rationale, and we can all get a beer.
No one believes the underlying dispute is really going away. But if the ban was only imposed to allow studies, it can’t persist once the studies have been done. If it is to be continued on the basis of what the studies showed, then the case will be so different that both sides will probably have to start over.
As for entry between now and October, the per curiam split the baby. Both lower courts had frozen the order altogether—meaning the government has had to allow visitors and immigrants from the six countries, and Syrian refugees, to apply for and obtain visas as if the order had never been issued. Monday the Court gave the government a genuine if limited win. The order can now take partial effect.
But part of the order is still blocked, and that part is quite important: The ban “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of EO–2.” To me, as to Lederman, that seems like a remarkable win for the challengers.
This means, as the Court made clear, that visas—and refugee admissions—must still be issued for eligible family members of foreign-born residents of the U.S.; foreign-born students accepted by American universities; and employees of U.S.-based businesses. The reduction in refugee numbers, as well, cannot be enforced against refugees who have such a “bona fide” relationship with persons or entities in the United States. This represents a significant part of the potential visitors, immigrants, and refugees the order purported to bar.
Justice Clarence Thomas, joined by Justices Samuel Alito and Neil Gorsuch, wrote a partial dissent suggesting that the entire stay, not just part of it, should be lifted at once, and the order allowed to take full effect. The court’s decision to grant cert. and narrow the stay, Thomas wrote, represents an “implicit conclusion that the government has made a strong showing that it is likely to succeed on the merits” when the case is heard. That is probably true as a matter of court doctrine, and it provides an unsubtle hint that the administration has three votes in its pocket for whatever it wants to do; but, again, the case most likely won’t proceed to judgment on the merits.
In the meantime, the challengers have won a different, potentially important “implicit” recognition by the court’s majority—plaintiffs living in the U.S. may have standing to raise claims of discrimination by relatives, students, or employees living abroad.
Remember, this is 2017. We have no idea what the world will look like, and what sort of orders the White House will be issuing in the name of national security, by the fall. The court may never decide this particular case; but challengers to those future orders may find that this opinion opened a door they can walk through.
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