Fate Of Trump’s Travel Ban Hangs In The Balance: 6 SCOTUS Options

Via Josh Blackman for Lawfare

On Monday, the Supreme Court’s tumultuous 2016 term is scheduled to draw to an end. But will it? All of the briefing in the travel ban litigation has been filed, and the cases are ready for the Court’s ruling. There are (at least) six possible options for resolving this matter.

1. Hold a Special Session in July

Two weeks ago, I wrote in the New York Times that the Court should hear arguments in the case over the summer. This option would bring finality to a significant national security matter. Further, by resolving the issue quickly, the Court could avoid any potential mootness issues that could arise if arguments are postponed until the fall. Alas, this option looks increasingly unlikely. If the Justices wanted immediate oral argument, they could have issued a scheduling order last week. As I understand the unwritten rules, five votes are required to expedite arguments. By waiting until Monday (or later) to even address the matter, a majority of the Court has signaled this case isn’t that urgent.

2. Hold a Special Session in September

Another option would be to schedule a special session to hear arguments in September, prior to the traditional beginning of the term on the first Monday in October. There is precedent for this move. For example, in 2009 the Court held such a special session, to re-argue Citizens United v. FEC. In that case, a divided 5-4 decision was issued four months later in January 2010. The problem with this approach, as I and others have noted, is that the case arguably becomes moot by mid-September. Two weeks ago, the Ninth Circuit modified the injunction issued by the District Court in Hawaii. As result, the government can now take the full 90 days to consider how to revamp its vetting procedures. At that point, the stated justification for the travel ban vanishes. Perhaps, as I noted, delaying arguments is merely a stratagem to vacate the decisions of the Fourth and Ninth Circuits under the Munsingwear doctrine, without having to rule on the statutory and constitutional matters. Mark Tushnet called this an “easy out.” I would call it a naked punt. If the case is worth hearing in September, it is worth hearing in July. The Justices wouldn’t fool anybody paying close attention to this issue.

3. Hear the Case in January

The Justices could also grant certiorari this week and schedule the case for late 2017. In the normal course, a petition for certiorari that is granted at the end of June would be scheduled for argument in November or December and there would likely not be a resolution until June 2018. It should not take a year to resolve this case. For example, the en banc Fourth Circuit managed to publish a 60-page opinion within three weeks of oral argument. The Justices have very smart law clerks. They can resolve the case with haste. If the Court takes this third approach, it would be an even more transparent effort to let the case moot itself before argument, at which point the petition could even be dismissed as improvidently granted.

4. Take No Action, and Relist the Case for the Long Conference

In recent years, the Court has adopted a cautionary practice before granting review in a case: each petition would be “relisted” at least once to give all of the Justices and their law clerks an opportunity to scrutinize the pleadings and ensure there are no “vehicle problems.” If the Court decides to relist the travel ban petitions, the case would be held over for the so-called long conference on September 25, 2017. By that point, as noted earlier, the entire case may become moot. The petitions could simply be denied, and the judgments of the lower courts would stand as both judgments and binding circuit precedents. The travel ban would end not with a bang, but a whimper.

5. Deny Certiorari Now

The Court could also simply cut to the chase. Because it takes four Justices to grant certiorari, if six Justices band together, the Court could deny review. Perhaps the sextet will reason that in the absence of a circuit split there is no reason to take the case. Or they will decide that since the case may become mooted in the fall, there is no reason to get involved. Or perhaps they would rather avoid this difficult case and not deal with President Trump’s unpopular action. Whatever the reason, it would take six Justices to deny review now. I predict such a denial would elicit one or more blistering dissents from denial of certiorari, and possibly even a response from the deniers.

6. Issue a Summary Reversal

There is another possibility that I haven’t seen addressed elsewhere: the Court could issue a per curiam summary reversal of the Fourth and Ninth Circuits. Generally, summary reversals are employed for unargued cases where the lower court made plain errors. As I’ve contended at some length, there are many such errors in both IRAP and Hawaii v. Trump. If five Justices so choose, they could issue a per curiam decision—over one or more dissents—that the lower courts erred. For example, the cases could be reversed on any number of grounds: the Justices could determine the plaintiffs lack standing; that Presidential declarations under 8 U.S.C. § 1182(f) are not subject to judicial review or else are reviewed deferentially; that Kleindienst v. Mandel is limited to the facial validity of the policy, and courts that looked to the President’s statements erred; that Mandel is limited to the actual denial of a visas, and not an executive order; that the Establishment Clause does not apply to foreign policy decisions as it does in the domestic context; that denial of entry and issuance of visas are different doctrines; or that none of these claims are ripe because no one has been denied entry. In my view, the grounds for summary reversal are legion. This approach would allow the Justices to quickly resolve the case before it becomes moot, avoid the need to disrupt summer schedules to hold arguments, and bring finality to this difficult issue.

***

This litigation has taken more twists and turns than I could have imagined when Trump issued his original executive order in February. During periods of regularity, an injunction barring the President’s signature national security policy would be an issue of the utmost importance for the Supreme Court. But these are not normal times. To reiterate a point I made in the Times, the issues in this appeal go far beyond the travel ban:

Far beyond this interim order, all of President Trump’s foreign and domestic policies will be infected by these same critical disputes. The Supreme Court may be able to evade review here, but these issues are certain to repeat themselves. The nine justices cannot punt these complicated matters, hoping someone else deals with them. All of the issues are fully developed, and ready for resolution now.

The buck stops here.

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15 thoughts on “Fate Of Trump’s Travel Ban Hangs In The Balance: 6 SCOTUS Options

    • Ok, Marty, I spent the last hour + reading the huge amount of data found on your link. I assume the blog is primarily visited by other lawyers! Even with my open dictionary the entire time I read the blog entries by Leah Litman and someone named Marty, I had a very difficult time understanding the points made and I am NOT uneducated! So, how about some help here…. as Leah put it at least once “in plain English” tell us what the current status is. The last thing I read and almost understood was more than 50 pages long and ended with one 13 word sentence, of which 6 words were simply prepositions. How about this word: No. There was apparently some prior request for a review of a lower court’s ruling in a related case — the document presented online began with 2 pages listing the lawyer’s names; 5 pages of related/similar cases; 40 pages of the main text; 2 pages of statues/provisions; ending with the 13 word sentence, the Conclusion.

      I know we are all interested in this particular matter and many of us may even agree to help the Take Care cause but I will admit that I cannot donate the amount of time required to read and understand the entries to this blog – so perhaps it is intended for the law student or working lawyers?

      So, maybe you can just explain in a quick little paragraph what the hell is happening tomorrow and even of more benefit, your position as to what they should do and why. Really appreciate your help here!

      – Murphy

      • Tomorrow or Tuesday: This is the last week of the 2016-17 SCOTUS term, when all pending opinions are customarily released on the either Monday or Tuesday of the week, and pending business of importance, e.g., the Muslim visa ban case, would be expected to be addressed by virtue of the nature of the case.

        There are two travel ban cases before the court where the government seeks review of orders from federal appellate courts (9th and 4th Circuit Court of Appeals) which upheld lower courts issuance of temporary injunctions against enforcing Trump’s executive order banning the granting of visas to Muslims arriving from six countries.

        The government has papers with SCOTUS, that is: (1) “applications,” to stay the temporary injunctions pending SCOTUS agreeing to review the appellate cases, and (2) petitions to SCOTUS to fast track the two cases on the merits by issuing writs of certiorari to the 9th and 4th Circuits (which basically means the government is asking the court to invoke its discretionary jurisdiction to review the decisions of the 9th and 4th, respectively), and asks that the parties be ordered to file briefs during the summer and that oral arguments be scheduled for cases in October when the court first convenes for the 2017-18 SCOTUS term.

        ======

        What do I think will happen and why? I’ve written above that the reasons set forth by the authors are most persuasive for denying the application for stays and petitions for certiorari. https://takecareblog.com/blog/an-updated-guide-to-our-analyses-of-the-travel-ban

        I think the Court would prefer to avoid this thicket because the record is a mess and the nature of the merits with Trump’s campaign words being an issue in the case being fraught with all kinds of nasty legal questions and presented with troubling issues the court would rather not address. For those reasons, no matter how they label it, I’d expect them to walk away.

        Tea leaves anyone?
        When there are nine deciders, you never know.

        Here’s another way to look at the potential outcome of whether they will address it, the Heisenberg approach:

        http://www.yalelawjournal.org/note/executive-orders-in-court

  1. Well, Ok Marty, that is just so much better……..

    and giving me the same blog address as the one in your first comment is no help and did you even look at that link for Yale Law Journal?!?! By comparison, it puts that first blog on a kindergarten level. omg.

    So, I simply surrender. You are profoundly smarter than me. I’ll just wait to see what CNN says when it is all over tomorrow or Tuesday. 😉

  2. Murphy, let me know what CNN says when it’s all over tomorrow or Tuesday, and make sure you vet it for fake news!

    • Lemme tell you, I stay away from all that fake news crap! My favorite CNN is Lemon – I tolerate the rest and if they would just get rid of that ridiculous Breaking News banner I would like them so much more…..Breaking News can only break once, for God’s sake! I watch mostly MSNBC and Maddow. Her goal is to connect all the dots that will lead dumbass out the front door of the WhiteHouse! and Laurence of Final Word is good too. I watch his show at midnight, puts me to sleep 🙂

  3. Good Morning, Marty! First news reported decision delayed until tomorrow and while I was having my 2nd cup of coffee they then reported: Court will hear lower court appeals in Oct. In the meantime, partial approval to enforce ban (great. now we will hear assface ranting about how HE WON, pls spare me…..) Only people with no direct connections, i.e. refugees, Trump’s travel ban can be enforced temporarily.

    Ban CANNOT be used to prohibit people with a direct connection, i.e., family member, a job, a class, etc, cannot be banned.

    I personally think it is a terrible decision, temporary or not. This will disallow people seeking life saving medical care, unless they have a family member here, for instance.

    – Murphy

    • No shit. Ok, I read the last 3 pages (already know the first 13 pages!) At least these guys recognize the burden this will place on whomever has to examine the individual requests and verify validity on each one. And while we absorb all that, I am recalling one case in particular……mom and dad settled in US and one son returned to homeland for many years and rejoined mom and dad back in US much later – and had joined ISIS and was now a terrorist….cannot recall specifics or which case it is related to. Anyone know what the hell I am almost kinda sorta remembering? Point, that guy would clear based on family connection. I’m sure there are other ways around the ban as well.

      In the meantime, good people seeking safety or medical care or just a better way of life would be restricted. This whole thing has to be one way or the other – probably won’t work well as these 3 judges have decided in order to meet both sides of the argument. And it is still a 90 day ban. And unless you are blind and deaf and stupid, you know it is based on hate and constantly referred to using the word “Muslim” and is therefore based on religion – from his own mouth. Nope. I disagree with them there judges.

      – Murphy

  4. I think this article dated March 12, 2017 has a very good compilation of valid information from a reliable source, PBS NewsHour: http://www.pbs.org/newshour/updates/convicted-terrorists-citizens/

    “The six countries targeted in this executive order have not been a major source of violent extremism in the United States,” Kurzman told the NewsHour Weekend. “Apparently the current level of vetting has been quite effective in minimizing the danger of terrorist infiltration. So the sense of urgency that seems to be driving the executive order does not match the actual level of threats we have witnessed in this country.”

    So, Again, what is the driving motivation for Trump’s travel ban? He is a delusional self-absorbed prevaricator con artist who has bamboozled his way into the WhiteHouse and brought along all his comrade cronies.

    – Murphy

  5. There’s a bit of looney business going on. When one reads Clarence Thomas’ dissent, you might be left with the idea that a prospective immigrant or refugee might get on a plane, let’s say, in Libya, fly to JFK, and then present himself and his papers for assessment, after which litigation would take place if he was sent packing.

    Here’s Clarence’s assertion: “Today’s compromise will burden executive officials with the task of deciding—on peril of contempt— whether individuals from the six affected nations who wish to enter the United States have a sufficient connection to a person or entity in this country. … The compromise also will invite a flood of litigation until this case is finally resolved on the merits, ….”

    “Peril of contempt.” Bullshit. Contempt requires proof of intent to flout or violate an existing court order. How about on peril of being wrong, and their decision being reversed, which is a peril employees of the government risk all day every day.

    “Executive officials!” You’d almost think that it’d be Bannon and Kushner making the vetting decisions at the airport. It’ll be the same bureaucrats that have always done the same job of vetting immigrants having connections or relationships to people or entities in the United States as has been done for more than 100 years.

    Yet the process is nothing like that. And rather than providing a link to the regulations governing the process, the story told my MOSTAFA HASSOUN, best illustrates what takes place before an immigrant ever touches our shores: http://www.politico.com/magazine/story/2017/01/i-went-through-americas-extreme-vetting-214703

  6. Hell, millions of US Citizens could not pass that vetting process…..just the one question about what do you think about Obama would eliminate half of ’em (if they were honest and said the same horrible things they say between their friends!). I read those comments about him and his wife and I literally boil with anger!

    You have to admit, in order to get thru that process for the time committed to it and the repetitive Q&A’s, a full day medical exam (scanning of your irises?), overall 5 separate inquiries each several hours in length and sudden phone calls in follow up to questions – and so on and so forth, up to about a two year process – requires absolute commitment to being approved to live in the United States! I don’t see how Trump thinks he can do a better job — as I snort with laughter at even the thought of such a thing!

    And I will add another personal opinion…..Clarence Thomas. He should not even be there. All the way back to his confirmation hearing, 1991, I 100% believed Anita Hill and still do! Several other cases thru the years make me shake my head in disbelief – John Thompson, an innocent man sentenced to death, almost 15 years in prison and finally the Prosecution in his case was convicted of hiding evidence and knowingly kept this man in prison and when a jury found for a huge settlement in Thompson’s favor was thrown out by Thomas (this man has no soul). In 2014 he was highly criticized for not even asking one question in 8 years and it was said just from his physical appearance in hearing cases, he just did not care and was called disgraceful. (plenty stuff on Google about this jerk)

    In order for the Supreme Court to agree to hear lower court appeals, isn’t it then assumed they find some merit in Trump’s bullshit? Based on what exactly?!!? Certainly not on terrorism evidence from any of those countries in the United States nor insignificant vetting! Maybe they all caught some of Clarence Thomas’ affliction…..laziness.

    – Murphy

    • You pose a good question when you posit this: “In order for the Supreme Court to agree to hear lower court appeals, isn’t it then assumed they find some merit in Trump’s bullshit? Based on what exactly?!!?” The last time I replied with legal mumbo jumbo it didn’t go so well, and the law relating to injunctions has that nature. So, I’ll refer you to paragraph to a WAPO article – link below – which, in most part, addresses you’re question in the third paragraph below:

      “Preliminary injunctions are generally supposed to be issued only if the plaintiffs have a “substantial likelihood of success on the merits.” The fact that the Supreme Court upheld the injunction with respect to foreign nationals with a “bona fide” relationship to the US suggests that a majority of justices believe that this category of aliens and Americans with a suitable relationship to them (which includes all or most of the plaintiffs in the two lower court cases), does in fact have such a likelihood of success.

      This in turn suggests that the justices endorse either the religious discrimination argument against Trump’s order, the statutory argument, or both. If they support the former argument, it also means they likely accept the validity of using Trump’s campaign statements, tweets, and other unofficial fulminations as evidence of the intent behind the order (I defended their use here and here). It likewise – correctly in my view – would not be bothered by the possibility that Trump’s order might be constitutional if issued by a different president, with different motives.

      This aspect of the Court’s ruling favors the plaintiffs. On the other hand, the fact that the injunction was lifted with respect to foreign nationals who lack a “bona fide” tie to the US favors the Trump administration. The justices may believe that people who fall into that category do not have a substantial likelihood of success on the merits. On the other hand, however, it’s possible the justices excluded them because they fail to meet one or more of the other three criteria for a preliminary injunction: that the plaintiff is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities weighs in the plaintiff’s favor, and that a preliminary injunction is in the public interest. The Court in fact briefly mentions the “balance of equities” as the basis for it’s ruling, and does not mention likelihood of success. If that factor is indeed the only basis for the distinction made between the two categories of aliens, it is possible that the Court will ultimately uphold the lower court rulings on the merits with respect to all categories of aliens covered by the executive order.”

      So, from the two sentences that start with “on the other hand,” you may readily understand why a conclusion that the court’s partially lifting the stay (a/k/a narrowing the stay), does not mean that it was a merits decision favoring Trump. For example, the six justices could have decided, after having “balanced the equities” that making foreign nationals who lack a “bona fide” tie to the US wait until they decide the case is a fair way to handle the matter.

      https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/26/supreme-court-issues-mixed-ruling-on-trumps-travel-ban/?utm_term=.b003d57e2a83

  7. I dunno what’s really different from the way it has always been. Either a person meets the criteria to be labeled bona fide or they don’t. If the vetting process is keenly followed and as thorough as it appears to be, even a person not “bona fide” would/could be approved for entry. Trump has made it very clear on more than one occasion his travel ban is on Muslims — even after he “watered down” his EO, he sent an angry tweet basically rescinding his watered down version…..AND IT IS UNCONSTITUTIONAL to ban a person based on religion. For over a year he has ranted about Muslim immigrants. There is no doubt in anyone’s mind what he has said. And from what I understand, the judges are reviewing the watered down version which is ridiculous since it is based on an outright lie and clearly proved by numerous video tapes and tweets – he cannot just say he didn’t mean that. And there is a second conflict — whether or not the president can ban entry to United States…..how about NO, if it is UNCONSTITUTIONAL reasoning.

    How long are they gonna chase this dog around the tree? What a total waste of time. btw, go back to that WaPo article and read the comments. Interesting!!

    – Murphy

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