Take Care, Leah Litman  //  6/15/17  //  In-Depth Analysis


This post is authored by Steve Vladeck, Professor of Law at the University of Texas School of Law, and Leah Litman (frequent Take Care contributor).

The government’s argument for suspending all entry into the United States of non-citizens from seven (now six) Muslim-majority countries has, from its inception, been predicated on two separate—but related—claims: First, that such a ban is a necessary “temporary pause” to allow the government to review its internal procedures for granting entry in the future to nationals from these countries. Second, that the Secretary of Homeland Security and the Attorney General have “determined” that such review (and, therefore, such a “temporary pause”) was necessary for national security. In other words, the most outward-facing (and controversial) aspect of the Executive Orders—the entry ban—was simply a means to their more important, inward-facing end, the internal review procedures.

Two developments on Wednesday have called this understanding—and, with it, much of the underlying justification for the entry ban—into serious question. First, President Trump signed a memorandum “clarifying” that the provisions of the second Executive Order (and their 90-day clock) become effective only once the current injunctions are “lifted or stayed,” a move designed apparently to preempt the argument (based on the plain language of the Executive Order) that it expired last night at midnight. Second, the Justice Department filed a little-noticed motion in the Ninth Circuit to issue the mandate in Hawaii v. Trump immediately—so that those aspects of the Executive Order that Monday’s Ninth Circuit ruling un-enjoined (to wit, the internal review procedures) could go into immediate effect (although the clarifying memorandum provides that they won’t go into effect until 72 hours after the injunction is formally lifted).

As we explain in the post that follows, in the process, these developments de-couple the entry ban from the internal review procedures—and, in doing so, undermine (perhaps fatally) the government’s strongest arguments for the ban itself.

I.  Decoupling the Internal Review Procedures from the Entry Ban

Writing last week, Leah explained how the government’s apparent interpretation of the Executive Order’s effective date (in response to the mootness objection) rendered fairly nonsensical the Order’s purpose, since the government appeared to be taking the position that the provisions were independent of each other—and could go into effect for the same 90-day period at different times. But the government had initially represented that the entry ban was merely a “temporary pause” during the period in which it would conduct an internal review of its entry procedures. Both things, of course, cannot be true—if the entry ban went into effect at any point in the future, it could go into effect well after the government had completed an internal review of its procedures. But this interpretation—that each provision of the order would become effective when allowed to go into effect—has now been enshrined in President Trump’s new “Memorandum,” which provides that,

In light of questions in litigation about the effective date of the enjoined provisions and in the interest of clarity, I hereby declare that the effective date of each enjoined provision to be the date and time at which the referenced inunctions are lifted or stayed with respect to that provision. To the extent it is necessary, this memorandum should be construed to amend the Executive Order.

In plain English:  The effective date for each provision of the order is the date the provision is allowed to go into effect. And if the Ninth Circuit grants the government’s motion to issue the mandate in Hawaii v. Trump, then all of the internal review provisions removed from the scope of the injunction will go into effect (and their clocks will start) in the next few days, even as the entry ban itself remains on hold.

These moves are more than just legal technicalities. Properly understood, they reflect a (perhaps unintentional concession) that the entry ban is not actually necessary to conduct the internal review procedures—and never was. If the entry ban goes into effect literally whenever a court allows it go into effect, then it could go into effect well after the government has completed its review of entry procedures (which will now proceed apace, thanks to the Ninth Circuit). Then, if the Supreme Court ultimately reverses the Fourth and Ninth Circuits on the merits, the entry ban would go into effect for 90 days from when that mandate issues—which would almost certainly be long after the internal reviews have been completed.  In other words, these developments make clear that the entry ban can no longer be justified as some kind of “temporary pause” to allow the government to review its internal procedures—if it ever could have been. 

These developments also demonstrate that the AG and DHS Secretary’s “determinations” were not, in fact, the animating justifications for the entry ban.  If the AG and DHS Secretary determined that a “temporary suspension” was needed to allow the government to complete its internal review procedures, the order didn’t do that.  Rather, the President signed an order that created a 90-day entry ban that, as now clarified, will go into effect *whenever* it is allowed to go into effect, regardless of where things stand with the internal review.  One would think, if these matters were necessarily intertwined, that their clocks would likewise rise and fall together. Not so, says the President and the Justice Department.

II.  Undermining the Executive Order’s Facial Legitimacy

The above goes to why folks should no longer take seriously a necessary connection between the entry ban and the review procedures. That’s more than just a descriptive problem, though; it fatally undermines DOJ’s legal defense of the entry ban. Here’s how:

One of DOJ’s principal defenses of the entry ban has been to argue that courts can only look to the “face” of the order (i.e., its text) to judge its legitimacy.  That is, DOJ maintains that if the Executive Order states a purpose that is “facially legitimate,” then the courts’ analysis is at an end (and so statements by the President tending to suggest a more nefarious purpose are, and ought to be, irrelevant). Of course, even before today’s developments, there were serious arguments that the Executive Order was not even legitimate on its face, as Gerald Neuman explained on Just Security—and as the Ninth Circuit held on Monday in concluding that the Order did not comply with section 1182’s preconditions for suspending entry.

But thanks to what happened on Wednesday, the face of the order now really doesn’t offer a legitimate purpose, at least for the entry ban. Indeed, yesterday’s developments go a long way toward proving that the stated purpose for the entry ban cannot possibly be the actual purpose.  Here’s how the text of the Executive Order justifies the entry ban:

To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening and vetting of foreign nationals, to ensure that adequate standards are established to prevent infiltration by foreign terrorists, and in light of the national security concerns referenced in section 1 of this order. . . entry into the United States of nationals of th[e] six countries [is] suspended for 90 days.

The “subsection (a)” to which this language refers is the internal review procedures.  So in plain English: The first three purposes all tie the entry ban to the internal review procedures, and the order states that the ban is to allow that review process to be completed. But the President has just “amend[ed] the Executive Order” to clarify that the entry ban goes into effect whenever it is allowed to go into effect, and in the absence of a stay from the Supreme Court, certainly well after the (no-longer-enjoined) internal review is done.

So what, you ask, might be the true purpose of a “floating” 90-day ban on entry by the nationals of six Muslim-majority countries? A ban on entry that goes into effect at some undetermined point in the future, months after the government has completed the internal review of its entry procedures for which the ban was initially held out as a necessary prerequisite, and more than three months after the AG and DHS had “determined” that a temporary suspension was warranted? 

Of course, we don’t have to guess. And thanks to the President’s own pen (and not, for once, his Twitter account), the Supreme Court doesn’t have to, either.

 

This post is cross-posted at Just Security.


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