Leah Litman // 6/26/17 //
Today the Supreme Court resolved the government’s petitions for certiorari and motions to stay the lower courts’ injunctions in the travel ban litigation. The Court granted the government’s petitions for certiorari, so that the case will be heard on the merits in October Term 2017 (specifically, in October). The Court also granted in part the government’s motions to stay the lower courts’ injunctions against the travel ban. How the Court disposed of the stay requests may affect what the Court has before it when it actually hears the case in October.
First, the easy part: The Court granted the petitions for certiorari in both the Fourth Circuit and Ninth Circuit cases. Thus, when the Court reconvenes in October, it will have before it cases that involve a challenge to the 90-day entry ban, the 120-day suspension of the refugee program, and the refugee cap (not really this last part, for reasons I’ll get into).
Now, the hard part: The Court granted, in part, the government’s motions to stay the lower courts’ injunctions against the entry ban, the suspension of the refugee program, and the refugee cap. The lower courts had enjoined those provisions entirely—the government could not implement them against anyone, not just the plaintiffs in the cases. The government had asked the Supreme Court to stay the injunctions in their entirety, so that the government could implement them with no caveats, or, in the alternative, to stay them except with respect to the specific plaintiffs in the cases (Mr. Doe, Dr. Elshikh, and the State of Hawaii). The plaintiffs had asked the Court to deny the stay requests in their entirety.
The Court didn’t do either of those things. Instead it granted the government’s motion “in part.” It kept the injunctions “in place only with respect to parties similarly situated to Doe, Dr. Elshikh, and Hawaii,” which it said “means that [the entry ban] may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.”
What does that mean? The Court offered this take on what kind of “bona fide relationship” must exist:
For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The students from the designated countries who have been admit- ted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.
In plain English: The injunction against the entry ban remains in force for persons with a “close familial relationship” to someone in the United States. The injunction against the entry ban also remains for persons with a “formal, documented, and formed in the ordinary course” relationship with an entity in the United States, such as a University. The Court lists as examples someone who has been admitted to a university, or accepted an offer of employment. It’s not clear whether the injunction against the entry ban extends to someone who has applied to a university or a job, but not yet heard about whether they were accepted. As for individuals with connections to a “nonprofit group”; there, the injunction against the entry ban does not extend to individuals who were contacted by the nonprofit group.
What does all of this mean for October? A few quick thoughts:
(1)Mootness And The Prospect of A Full Merits Review. As many contributors to this blog, particularly Marty Lederman, have written, the entry ban is written to last for only 90 days. And the President’s June 14 clarifying memorandum states that the ban lasts for 90 days “after all applicable injunctions are lifted or stayed with respect to that provision.” Thus, the entry ban and suspension of the refugee program will go into effect now, for 90 days, at least as applied to persons who do not have a bona fide connection with the United States. And the entry ban will expire 90 days from now, again at least as applied to persons who do not have a bona fide connection with the United States (and the suspension of the refugee program 120 days from now, again as so limited).
It’s not clear exactly what that means for what the Supreme Court will hear come October. By the time the Court hears the case, the government will have completed its review of existing entry procedures and existing refugee program procedures (“the internal review process”). Under the terms of the executive order that establishes the entry ban and internal review process, the government is to prepare reports about possible reforms to those procedures within the 90-day window of the entry ban. So when the Court convenes for arguments in October, the government may have reformed entry procedures and the refugee program.
But at that point, the ban will still be enjoined as it applies to persons with a bona fide connection to the United States. So if the Court were to reverse the Ninth Circuit and Fourth Circuit injunctions after hearing the case on the merits, that could mean a 90-day entry ban (and 120-day suspension of the refugee program) goes into effect for persons who have a bona fide connection to the United States.
That possibility is both odd and disturbing—why allow an entry ban on persons who have connections to the United States to go into effect after the internal review process has been completed, and months after the relevant “determinations” by the Attorney General and Secretary of Homeland Security that a “temporary pause” to allow the government to review its existing procedures was needed? The prospect of allowing that kind of weird, semi entry ban may affect the Court’s review of the merits.
There’s also a chance that the government would take the position (and/or that the Court would read the President’s clarifying memorandum and underlying order to mean) that the ban lasts for only one 90-day period. That is, because the 9th Circuit and 4th Circuit injunctions have been lifted in some respects, the government or Court could say that the entry ban went into effect today and expired September 27, and that the order does not allow some applications of the entry ban to go into effect later, even if the full scope of the entry ban never went into effect. I think that’s a perfectly reasonable reading of the order and clarifying memorandum. It also means the case will be moot by the time the court hears it.
(On timing, the suspension of the refugee program lasts for 120 days, through the last week of October; the refugee cap applies only to fiscal year 2017, which ends at the beginning of October.)
(2) Marty casts the stay as huge victory for the plaintiffs, noting that the Court “denied the motions to stay the injunctions not only as applied to aliens with particular relationships to the (U.S. person) plaintiffs in these cases, but also as to other aliens who have analogous relationships with other U.S. persons–‘foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States’–even if those U.S. persons are not plaintiffs in either of the two cases!”
I think that is a reason to celebrate, but I’m a bit more skeptical of what the Court did. The scope of the Court’s stay creates some serious administrability hurdles, which complicates the merits review as I explain below. The limitation the Court creates (a "bona fide" connection to the United States) is also open-ended and susceptible to a ton of interpretation. The discretion that's built in to that limitation will be exercised by officers on the ground, and the "bona fide connection" could be interpreted narrowly or broadly. The discretion-laden standard could also be administered in discriminatory ways (whether subconsciously or otherwise).
The Court's limitation on the stay also makes it so there is no link between the 90-day entry ban (as applied to persons who have some connection to the United States) and the internal review process. The Court's stay disposition also let the ban go into effect in some (perhaps small?) respects, but not others, with nary a word about the merits, even though the case will likely be moot before the Court is able to hear argument on the merits. Thus, the ban will (kind of, sort of, but not really) go into (some) effect, and all the Court will likely be able to do in October is dismiss the case as moot, or vacate the underlying opinions on the ground that the case has since become moot. It is a little odd to grant a petition and accompanying stay requests in a case, knowing it will become moot before argument is heard.
(3) Two quick thoughts on the merits. One, to the extent the Court hears and disposes of the case on the merits next term (which I do not think it will), the government’s position will be considerably weaker by then in two respects. The Court’s refusal to stay the injunctions as they are applied to persons with bona fide connections to the United States means that the government is obligated to carry out existing entry/vetting procedures and admission into the refugee programs for persons with connections to the United States while simultaneously conducting its internal review of entry procedures and the refugee program. The government’s argument for the entry ban and suspension of the refugee program, however, has been that that is impossible to do—that it cannot simultaneously review existing entry procedures while carrying out those very procedures. The claim has always been dubious, and the stay indicates the Court doesn’t really buy it either. Moreover, to the extent the Court does hear a challenge to the entry ban on its merits in October, by that point the “internal review” of entry procedures will have been completed. Thus, the government’s stated rationale for the entry ban (to allow it to review existing entry procedures) would not justify an entry ban as applied to persons with connections to the United States going into effect much later.
The second quick thought is from the dissent. Justices Thomas, Alito, and Gorsuch dissented in part from the Court’s disposition of the stay requests. They would have allowed the entry ban and suspension of the refugee cap to go into effect in their entirety. They wrote: “And I agree with the Court’s implicit conclusion that the Government has made a strong showing that it is likely to succeed on the merits—that is, that the judgments below will be reversed.” That is not how I read the Court’s opinion (I also don’t think it’s how Marty reads it, based on his post). But that statement does make clear where Justices Thomas, Alito, and Gorsuch stand on the merits—with the government. (That’s not especially surprising, but still notable.)
One final quick thought: Both sides will probably take the Court’s action today as something of a victory. Maybe that’s a good thing, maybe it’s bad. I think that the Court was right not to allow the ban or refugee suspension to go into effect with respect to persons who have a connection with the United States. That said, I would have preferred if that decision (and the decision to allow some of the ban and suspension to go into effect) had been made with more explanation than the Court’s disposition offered. (The lack of explanation is understandable given the timing, but still.) The Court's only explanation is to gesture in the direction of equity and discretion, and essentially just declare that the balance of equities differs for persons who do not have a connection to the United States. True enough, but does the balance of equities differ enough such that the ban and suspension should have gone into effect for those persons, but not others? Or, from the other side, why did the Court conclude that the government has not made the requisite showing (of irreparable harm, or that the lower court’s decisions were wrong) to allow the entire ban and suspension to go into effect? If I’m right, we will never really know, since I don’t expect the Court to issue a decision on the merits.