Marty Lederman // 7/15/17 //
Cross-posted from Just Security.
Thursday night, Judge Watson issued a ruling rejecting two of the ways in which the government has interpreted the Supreme Court’s modification of the preliminary injunctions in the Hawaii “entry ban” case: He held that (i) the preliminary injunction prohibits enforcement of Sections 2(c), 6(a) and 6(b) of Executive Order 13,780 as applied to grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States; and that (ii) the P.I. also prohibits enforcement of Sections 6(a) and 6(b) against a refugee who has a formal assurance from an agency within the United States that the agency will provide, or ensure the provision of, reception and placement services to that refugee.
Last night, the government made a motion to the Supreme Court to clarify its June 26 ruling; the government is asking the Court to hold that the injunctions do not protect those two classes of foreign nationals seeking entry. The government also asked the Court to issue an “administrative stay” of Judge Watson’s order while the Court is considering the motion. Today, however, instead of granting such a stay, the Court instructed the Hawaii plaintiffs that they have until noon Tuesday to submit a response to the motion. It thus appears that the government must conform its entry practices to Judge Watson’s order, at least until such time as the Supreme Court says otherwise.
I’ve already written at length on the implausibility of the government’s reading of the Supreme Court’s stay to exclude grandparents and other relatives from entry. Others have also written on that question and on the issue of whether the Court’s ruling protects refugees with assurances of assistance from volunteer resettlement agencies. Links to many of those posts, and to the lower-court briefs in the Hawaii case, are collected here.
Now that the case is back in the Supreme Court, here are four additional, preliminary thoughts on where things stand:
1. Keep in mind that this entire dispute is about who will be permitted to enter the United States over the next 10-15 weeks. The entry ban of Section 2(c) expires on September 24. The fiscal year to which Section 6(b) applies ends on September 30. And Section 6(a)’s categorical ban on entry of refugees expires on October 24. (In this post, I offered some speculation about why the Court granted certiorari despite the impending mootness.) This limited window of dispute does not mean, however, that the stakes are low: As explained below, resolution of the government’s motion might well determine whether tens of thousands of people, most of them refugees fleeing terrible conditions, will be able to enter the United States.
2. In contrast to all of the briefs and opinions over the past month or so, the government’s new motion leads with the refugee/resettlement agency question, rather than with the “close family members” question. That’s probably a function of two things:
First, the Acting Solicitor General likely realizes that the merits of his arguments on the "close-family-members" question is very weak—indeed, so weak that some Justices might question whether the Administration is trying in good faith to abide by the Court’s decree. As I noted previously, in its June 26 opinion the Court specified repeatedly that it intended to exclude from the scope of the preliminary injunctions only those “foreign nationals abroad who have no connection to the United States at all.” Yet the government continues to exclude many persons with obvious and “bona fide” connections to persons in the United States—indeed, connections much closer than, e.g., most mothers-in-law, contract employees and invited lecturers, all of whom are indisputably covered by the modified injunctions. Moreover, as Judge Watson wrote, the Government’s definition of “close familial relationship” not only contradicts the Supreme Court’s reasoning, but “represents the antithesis of common sense. . . . Indeed, grandparents are the epitome of close family members.” (For why the government’s arguments to the contrary in its new motion are unlikely to persuade, see Leah Litman’s post today.)
Second, in terms of the practical impact over the summer, the scope of the preliminary injunction as to Section 6 (the refugees provision) is almost certainly more important than the scope of the injunction as to Section 2(c) (the entry ban). If the injunction does protect grandparents, et al., of persons in the United States, it is unclear how many more persons will for that reason enter the United States over the next ten weeks. If, however, the Court holds that the injunction protects refugees with assurances of assistance from volunteer resettlement agencies, then that might affect the prospects for as many as 24,000 refugees to enter the nation between now and October 24. (This is not to say that the merits of the challenge to the entry ban might not be more important in the long run—especially if President Trump extends that ban beyond September. My point is simply that the fate of Section 6 will likely have a greater impact this summer, in terms of how many individuals it affects (and how desperate the plight of those individuals might be).
3. As for those 24,000 refugees who might be affected by the resolution of the government’s motion regarding settlement agencies, it is worth recalling the Ninth Circuit’s conclusion that the government has utterly failed to explain how their entry between now and October 24 might result in any terrorist acts in the United States—or, in particular, why the present, very robust vetting and screening procedures are inadequate to avoid such risks: “Refugees receive the most thorough vetting of all travelers to the United States in a process that takes eighteen to twenty-four months. By the time refugees are approved for resettlement in the United States, they have been reviewed by the United Nations High Commissioner for Refugees, the National Counterterrorism Center, the Federal Bureau of Investigation, the Department of Homeland Security, the Department of Defense, the Department of State, and the U.S. intelligence community.” (It is therefore hardly surprising that the government has only identified one refugee from the six affected nations who has ever planned or committed a terrorist act in the United States—and that was in a case in which the decision to allow the entry was not a mistake, or based upon inadequate information: Mohamed Mohamud was a Somali who entered the United States at age 3 in 1994, and was later convicted of attempting to detonate a bomb during the 2010 Christmas Tree Lighting Ceremony in downtown Portland, Oregon—a plot suggested to him by an undercover FBI officer.)
Thus, to the extent the government’s “interest in preserving national security” is relevant to the equitable balance that determines the scope of the preliminary injunction, as the Court in its June 26 opinion suggested it should be, that interest is negligible to non-existent when it comes to the refugees who have assurances of assistance from volunteer resettlement agencies, all of whom will have already been subject to extraordinary, multiple layers of screening before they are permitted to enter the country.
4. Whatever the Supreme Court decides to do with the government’s motion to clarify the scope of the preliminary injunction, it’s important to understand that any lines the Court draws now will almost certainly not reflect the likelihood of success of different categories of foreign nationals if and when the Court were to decide the case on the merits.
As I’ve explained previously, it’s highly unlikely the Court will ever have occasion to reach the merits of the challenges to this particular Executive Order, because the provisions in question will all expire before or (in the case of Section 6(a)) just after oral argument. But let’s assume, for the sake of argument, that President Trump extends the terms of the challenge restrictions, and that the Court does reach the merits in this or a related case. Let’s assume, in other words, that the Court issues a decision after briefing and argument, and finds that the plaintiffs have standing. If that were to happen, there are, roughly speaking, two possible results—and the various classes of foreign nationals would almost certainly all be treated alike, without regard to “bona fide relationships,” regardless of which of those two outcomes the Court reached:
On the one hand, the Court might conclude that the Executive Order (or a similar successor Order) was lawful—that it was authorized by 8 U.S.C. 1182(f) and did not violate the Establishment Clause of the First Amendment. In that case, none of the different classes of aliens would be entitled to any relief.
On the other hand, if the Court ultimately concluded either that Section 1182(f) does not authorize exclusion on the basis of national origin (at least not without a different evidentiary predicate and presidential finding than what was present here), or that the provisions in question violated the Establishment Clause, then (presumably) the Executive would cease enforcing those unlawful directives, even as to foreign nationals who might not have had standing to sue or who do not have a “bona fide” relationship with any persons in the United States. To be sure, a particular district-court injunction might be limited to what is necessary to fully remedy the plaintiffs in a given case—and therefore it does not (or should not) ordinarily provide “universal” relief. By contrast, however, a Supreme Court decision that Executive conduct is unauthorized or violates the Constitution ought to have the practical effect of bringing that conduct to a halt, full-stop . . . assuming, that is, that we have an Executive who is committed to abiding by the Court’s legal conclusions, and not merely the Court’s judgments.