Cross-Posted on Just Security

In a post yesterday, I argued that it wouldn’t make much sense for the Supreme Court to grant the government’s petition for certiorari in the “entry ban” case, Trump v. IRAP, No. 16-1436, because 33 hours after the Respondents file their response to the petition on June 12, the entry ban will no longer be operative–even if the Court were to stay the current injunctions–by virtue of the terms of the President’s Executive Order itself.  My reasoning was fairly straightforward:

Section 2(c) of the Order provides that “the entry into the United States of nationals of [the six designated] countries be suspended for 90 days from the effective date of this order.” And Section 14 of the Order specifically provides that the “effective date” of the Order was 12:01 a.m. on March 16. Accordingly, the E.O. itself provides that the suspension prescribed in Section 2(c) ends at 12:01 a.m. on Wednesday, June 14, whether or not any courts have enjoined its implementation in the interim.

In response, Will Baude has floated two purportedly “plausible” alternative interpretations of the E.O., which he denominates “Possibility Two” and “Possibility Three” (where my reading is deemed “Possibility One”).

Will’s “Possibility Two” is very simple–namely, that the Executive Order’s “effective date” has itself “been delayed by the court orders preventing it from going into effect.” If the Order’s effective date has not yet occurred, Will explains, then of course the 90-day clock for the entry ban, which was to begin on that effective date, has itself not yet begun to run.

Will doesn’t actually defend Possibility Two, however–and for good reason, because it would depend upon a fundamental misreading of the district court injunctions in Hawaii and Maryland.  Those orders don’t “prevent” the Executive Order’s “effective date” from going into effect (whatever that might mean–an effective date of an effective date?).  Indeed, the courts’ injunctions don’t mention the effective date of the E.O. at all–or Section 14 of the Order, which establishes that effective date as March 16.  Nor did any party ask for an injunction to change the effective date.  Thus, that date remains March 16 (at 12:01 a.m.), as expressly prescribed in Section 14.  Moreover, as I explained in my post yesterday, that March 16 effective date has continuing operational effect, wholly apart from its application to the entry ban in Section 2(c), because various other requirements of the E.O. (the deadlines for required reports in Sections 5, 8 and 11, for example) are tethered to a schedule that commences on that date.  No court order has done anything to change this.

So the action is really all about Will’s “Possibility Three,” which he describes as follows:

The order’s “effective date” is unchanged by the court orders, but it will not expire until it has been in effect for 90 days. The upshot is the same as in Possibility Two: The order will not become moot as long as the entry ban is stayed.

Based upon the rest of Will’s post, I think this formulation of his is not quite what Will means to say.  A more accurate, specific version–one that tracks Will’s reasoning–would be something like this:

The order’s “effective date” is unchanged by the court orders, but Section 2(c)’s entry ban will not expire until it has been in effect for 90 days after that effective date. The upshot is the same as in Possibility Two: The entry ban will not become moot as long as the entry ban is stayed.

Will’s reasoning depends upon the fact that Section 2(c) of the order says that entry of designated nationals will “be suspended for 90 days from the effective date of this order.”  Will notes, correctly, that “[n]ormally, that would result in the order lasting for 90 days, because a 90-day suspension normally takes 90 days.”  In this case, however, because two district judges have enjoined implementation of the entry ban, Will reasons that “it will take longer than 90 calendar days for the 90-day suspension to run.”  Here’s Will’s more straightforward version of the argument:  “The [ban] will last until it has done what it says it is going to do, namely suspend entry for 90 days.”

According to Will, this “is probably the most natural interpretation of the order,” even though it contradicts the government’s own earlier representation to the Court of Appeals for the Fourth Circuit that “Section 2(c)’s 90-day suspension expires in early June.”

It’s a provocative theory, but I’m dubious.  The language of the Order on which Will’s reading depends, recall, is “I therefore direct that the entry into the United States of nationals of those six countries be suspended for 90 days from the effective date of this order.”  According to Will (if I understand him correctly), this means only that the State Department must suspend entry of those aliens for some period, or combination, of 90 days, anytime after the Order’s effective date of March 16, even if those 90 days of suspension do not, for example, begin until a couple of years after the effective date.

Even if the government repudiates its previous interpretation and offers this one in its place, I would be surprised if the Court accepts it.  I haven’t researched other usages–in regulations, statutes and executive orders–of the common formulation “Do X for Y days from [date Z].”  So perhaps what I’m about to say is mistaken.  It strikes me, however, that the natural reading of “from date Z,” in that formulation, is “beginning on date Z,” and not (as Will would have it) “some time after date Z.”

That more natural reading makes functional sense of the President’s directive, too.  Surely, for instance, the State Department would not have acted in compliance with the Order if it voluntarily (i.e., absent any injunction) continued to allow entry of the nationals of the six countries from March 16 through May 31, and then suspended entry from June through August, or if it chose to suspend such entries every Tuesday and Thursday–but not the other five days of the week–for 45 weeks.  Or to take an example closer to home:  Let’s say that the Hawaii judge, like the Maryland judge, enjoined the entry ban but did not enjoin the DHS Secretary from performing the “screening and vetting procedures” assessment for all incoming aliens described in Section 2(a), and that the administration therefore completed the review contemplated by the rest of Section 2 by June 14.  Let’s further stipulate that as a result of that review, the Secretary concluded that no new information or processes are necessary with respect to the entry of Somali nationals.  And then, the courts lifted their injunctions against the entry ban.  In that scenario, would the State Department be complying with the E.O. if it thereafter suspended entry of the nationals of all six designated countries, including Somalis, for some 90-day period after June?  Presumably not.

The basic point is that, as the government has argued, the President specified 90 days not (as Will suggests) because there’s something inherently valuable about suspending entry for some–any–three-month period, but instead because the President assumed that the Section 2 review process would be complete by June 14, and he wanted the entry suspension in place during that review process.  Of course, as I explained in my original post, the review process will not be finished by June 14, in part because of the Hawaii injunction, but also, and more fundamentally, because of DHS’s own failure to comply with the presidential directive.  (The original Order required DHS to issue its report by February 26.  If it had done so, and if the President had not revoked the original January Executive Order, the entire review process would have been finished by late April and we wouldn’t be having this debate.)  And therefore, with the benefit of hindsight, perhaps the President should have specifically directed the State Department to suspend the entry of the nationals in question “during the pendency of the review process,” rather than for a designated number of days “from” March 16.  But he chose the latter option–perhaps so that the entry ban would not be seen as indefinite, and so that DOJ could represent to the courts, as it did after the injunctions were in place, that the ban is no big deal because “Section 2(c)’s 90-day suspension expires in early June.”  Having deliberately opted for that time limit, however, the President is now bound by it–unless and until he changes the Executive Order.

Regardless of whether I’m right about the plausibility and the merits of Will’s “Possibility Three” reading of the Executive Order, this discussion between us further illuminates why there’s no need, let alone urgency, for the Court to grant certiorari.  As Mark Tushnet has suggested, the Court–or the court of appeals for the Ninth Circuit–could simply stay the Hawaii injunction of the review process (i.e., of all the parts of Section 2 other than the 2(c) entry suspension), in part because Judge Watson’s Establishment Clause rationale for that part of the injunction is, to say the least, questionable.  The Section 2 process would then be complete before the end of the summer–if DHS finally complies with the Order–and then the nominal, principal basis for Section 2(c)’s entry ban will be extinguished . . . and there will be no need for the Court to review its legality.

There’s also something even more important about the Hawaii injunction–and the way the government has treated it–that this whole, lawyerly discussion of mootness and effective dates tends to obscure.  Recall that, as DOJ would have the courts believe, the heated dispute about the legality of entry ban is the tail wagging the dog:  that ban, the government insists, is a mere temporary, stop-gap measure, intended to prevent a purported risk of terrorism from nationals of the six countries for a short period until the Administration can study the question and promulgate new, country-specific, screening and vetting procedures.  The “dog,” as it were, is the review process itself, and the new procedures that the original Executive Order assumed would be in place by late April.

On this view–DOJ’s account–of the Executive Order, and the place of the entry ban within its scheme, the Hawaii court’s injunction of the review process itself therefore was not a mere tag-on, or ancillary detail; it was, instead, but a far, far more extensive dismantling of the President’s initiative, and a much more fundamental threat to executive authority writ large:  The Hawaii order effectively prevents the President from directing his officials even to study how the entry vetting process for all aliens might be improved!  It also appears to prohibit the President from exercising his constitutional, diplomatic authority to request certain foreign governments to supply information about their nationals who seek entry (see Executive Order Section 2(d)).  Moreover, that part of Judge Watson’s injunction is based upon a far more aggressive, and more dubious, theory of what the Establishment Clause prohibits, one that would preclude the President from doing virtually anything, no matter how benign–even things not limited to, or having a disparate impact upon, Muslims or the nationals of particular nations, and even including directives to study a certain problem or to engage in particular forms of international diplomacy–where his actions are infected by religious animus.

And yet DOJ has not treated that part of the Hawaii injunction with nearly the same degree of urgency, and alarm, as it has treated the injunctions against the temporary entry ban itself.  To be sure, DOJ asked the judge in the Hawaii case to clarify whether he truly intended his temporary restraining order to enjoin the Section 2 review process.  (Judge Watson curtly answered “yes”:  “The Motion . . . asks the Court to make a distinction that the Federal Defendants’ previous briefs and arguments never did.  As important, there is nothing unclear about the scope of the Court’s order.  The Federal Defendants’ Motion [for clarification] is DENIED.”  The judge subsequently explained his reasoning for enjoining all of Section 2 in his order converting the TRO into a preliminary injunction.)  And DOJ did apply to the Court of Appeals for the Ninth Circuit for a stay of the entirety of Judge Walton’s injunction.  In that application, however, the injunction against the review process is not much more than an afterthought.  There is almost nothing about it in the section entitled “The District Court’s Injunction Imposes Serious, Irreparable Harm On The Government And The Public.”  And when, on pages 21-22, the brief finally gets around to a (short) discussion of the injunction of the review process, it is only to make the point that the sections of the E.O. in question–directing federal agencies to examine current procedures, to make recommendations and update policies, and to initiate inter-governmental diplomatic and official communications–“do not pose any ‘immediate threatened injury’ to the plaintiffs.”  See also p.3 (“the provisions of Sections 2 and 6 concerning internal governmental or diplomatic activities, and those relating to refugees, should not be blocked because they plainly do not harm plaintiffs“).  There’s not a word about the harm to national security, or to presidential authority, in the discussion.  (In fairness, the SG’s recent application to the Supreme Court for a stay of the Hawaii order does include a bit more emphasis on the injunction against the review process.)

What’s more, the administering agencies have hardly acted as though the review process, and whatever new “screening and vetting protocols and procedures” might emerge from that process, is an especially pressing concern.  As I’ve explained, that process would have long ago been completed–and the new “protocols and procedures” would already be in place–if the Administration had treated it as a priority, or if it had even adhered to the terms of the January Executive Order.  And, if it had done so, then there’d be no need for the continuing debate about the legality of the “temporary” entry ban, because any new, post-review entry restrictions or protocols (presumably) would be based upon a different and, one hopes, a more robust and fact-based evidentiary record, rather than upon a made-to-order, after-the-fact ipse dixit of two cabinet officials that “it is imperative that we have a temporary pause on the entry of nationals from certain countries to allow this review to take place—a temporary pause that will immediately diminish the risk we face from application of our current vetting and screening programs for individuals seeking entry to the United States from these countries.”

The Administration’s relatively nonchalant treatment of the “screening and vetting protocols and procedures” review process, and the Hawaii judge’s injunction of that process–in contrast with the urgency with which it is insisting upon expedited review of the purportedly “temporary” entry ban–is yet further evidence that the entry ban is not, in fact, a mere stop-gap, or the tail wagging the Section 2 dog:  it is, from the President’s perspective, the big kahuna itself.  The President did not insist upon the entry ban, as AG Sessions and Secretary Kelly represented, in order “to allow this review [of vetting procedures] to take place”–a review that could have been done by now, even without an entry ban–nor, as Judge Keenan explained in her concurring opinion, was it based upon any serious or even credible presidential finding (which 8 U.S.C. 1182(f) requires) that the entry of aliens from the six nations in question would be detrimental to U.S. interests:  “[T]he President’s ‘finding’ in Section 2(c) is, in essence, a non sequitur because the ‘finding’ does not follow from the four corners of the Order’s text,” she wrote.  “In particular, the text fails to articulate a basis for the President’s conclusion that entry by any of the approximately 180 million individuals subject to the ban ‘would be detrimental to the interests of the United States.’”  As Judge Kennan noted, “the statutory text plainly requires more than vague uncertainty regarding whether their entry might be detrimental to our nation’s interests.”

Rather, as I wrote a few weeks ago:

At a minimum . . . —and I think this gets at the core reality that virtually everyone understands about this Executive Order—President Trump imposed the entry ban not because he made any considered judgment, based upon a sober evaluation of the evidence, that the current processes for entry of nationals from these six nations were inadequate, but instead in order to fulfill his campaign promises to keep Muslims out of the United States, and to fight a war against an abstractly defined enemy: “radical Islamic terrorism.” It was, as Richard Bernstein puts it, “an opportunistic, public appeal to religious prejudice,” even if the prejudice in question was that of the President’s constituency, rather than the President himself. . . .  Perhaps . . . the President’s obvious objective of “following through” on his campaign pledge to exclude Muslims is an Establishment Clause violation.  But whether or not it transgresses the First Amendment, a desire to make good on a President’s campaign promises—even without any taint of religious prejudice—is not an adequate or proper basis for the exercise of the broad but not unlimited authority that Congress conferred upon the President in § 1182(f).

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