Cross-posted from Just Security
In a post on Monday, I offered some thoughts on three of the most important considerations the Court will be considering: (i) whether there’s any basis for the Court to grant cert., and to consider the case in the Fall, as the Government proposes (see p.40)–or whether that course of action would be futile; (ii) whether the government has satisfied its burden–especially the demonstration of irreparable harm–necessary to warrant a stay of the two preliminary junctions pending the Court’s hypothetical hearing on the merits of the cases in the Fall; and (iii) the merits of the statutory basis for the Ninth Circuit’s ruling, namely, that the President acted without statutory authority because his purported “finding” did not satisfy what 8 U.S.C. 1182(f) requires.
I encourage interested readers to read the three briefs filed in the past two days, which have much to say on these three crucial questions, and more. For now, I’ll merely stress three quick points raised by the Government’s brief today, which correspond to matters I discussed in my post on Monday:
First, the government has implicitly conceded that there would be nothing for the Court to review this Fall if it were to grant certiorari. The Acting Solicitor General confirms, once again, that the entry ban is designed to operate “in tandem with the parallel review [prescribed in Section 2], just as the Order envisions.” Because the district court judge in Hawaii amended his injunction on Monday, that internal agency review will begin tomorrow and should be completed before October. The temporary entry ban therefore will not be in operation come the Court’s next Term, regardless of whether the injunctions are stayed–and there will be no substantive basis for it to operate then, even if the government were to prevail on the merits. Therefore there will be nothing for the Court to review. As the IRAP plaintiffs put it in their latest brief:
What is before the Court now . . . is a request to review a temporary ban provision that, even by the government’s telling, will be overtaken by events by the time the Court hears oral argument. If, after the review is complete, the government decides not to impose further travel restrictions, the 90-day ban at issue here will be a pointless relic of prior circumstances, and will not require review. And if the government does take more-permanent actions after that process ends, see Order §§ 2(e), (f), the Court can review any challenges to those actions in due course, after the lower courts have addressed them in the first instance.
The government once again does not even address this dispositive, timing-specific reason for the Court to deny the cert. petitions.
Second, this basically means–and the Acting SG comes very close to saying so directly–that the entire dispute will be resolved by virtue of the Court’s disposition of the stay applications, which will determine whether the entry ban is in effect this summer (and only this summer), during the pendency of the internal agency review. Because the stay applications are ostensibly designed for the period “pending appeal,” however, it follows that a denial of the cert. petitions–thereby precluding appeal–should automatically defeat the stay applications. Moreover, with respect to the merits of the stay applications, the government still offers no substantial ground for establishing any irreparable harm, other than an alleged, abstract, alleged harm “to the government and the public” in the very fact of a judicial “interference with the President’s national-security judgment.” (See also the Hawaii brief at 31-32.)
Which brings us to the third matter–the government’s argument for why the President satisfied Section 1182(f)’s prerequisites. In at least five places, the Acting SG refers to the President’s alleged “national-security judgment”; in another two, to his “risk assessment.” The brief argues both that this “judgment” or “assessment” satisfied 1182(f)’s requirement, and that, in any event, the courts may not second-guess it. This “judgment” is at the heart of the brief’s substantive argument on both the statutory question and the issue of “irreparable harm.”
There are at least two significant problems with this basis for the government’s arguments. First, the Acting SG virtually concedes that the President’s so-called judgment was not what 1182(f) expressly requires: That is to say, the President does not even purport to have made a judgment that the entry of the class of aliens in question would be detrimental to U.S. interests. Indeed, as I discussed in my last post, the gist of the government’s theory is that the President imposed the ban because he allegedly lacked the information necessary to determine whether entry of those aliens would or would not be detrimental. That is not what Section 1182(f) requires.
More fundamentally, the dirty little (open) secret at the heart of this case–the thing that virtually no one would seriously dispute–is that Donald Trump did not make any “national security judgment” or “assessment” at all, if those terms are to have any meaning. Instead, he merely issued a decree, complete with an ostensible “finding,” manifestly designed solely to fulfill a campaign promise (a promise that itself was expressly designed to exploit religious animus and fear), without having consulted any of the evidence, intelligence and expertise available within the Executive branch, and without any basis for concluding that the existing robust procedures, together with others he could (and did) implement, would result in the entry of persons who would later attempt terrorist crimes in the United States.
Such an ipse dixit does not a “national security judgment” make–let alone one to which the Justices ought to afford significant deference.