//  8/2/17  //  Commentary

Two weeks ago, the Supreme Court released the calendar for the oral argument session that will kick off the Court’s 2017 term.  The Court’s first sitting begins the week of October 2nd, and the Court scheduled six cases for that week. Trump v. Hawaii/Trump v. IRAP, the consolidated entry ban case, is not among them.

The oral argument schedule is notable because the entry ban case is time sensitive in a way that the other cases are not, due to the temporary nature of the provisions at issue in the case.  The entry ban lasts for 90 days; the suspension of the refugee program for 120. In light of the President’s “clarifying memorandum,” both the entry ban and suspension of the refugee program became (at least partially) “effective” on June 26, 2017, when the Supreme Court partially stayed the Fourth Circuit Court of Appeals and Ninth Circuit Court of Appeals’ injunctions against the provisions. 

That means the entry ban’s 90-day term will end on September 24, 2017.  The fiscal-year-2017 refugee cap ends on September 30, 2017.  And the 120-day suspension of the refugee program will end on October 24, 2017.

Despite the looming expiration of the provisions that are at the heart of the entry ban case, the Court elected not to calendar the case for the first week of October.  Instead, it pushed the case back to the second week of the sitting, on October 10th. A week might not seem like that much of a difference. But the additional time between October 2nd and October 24th compared to the time between October 10th and 24th would go a long way toward allowing the Court to prepare and issue an opinion in the case, assuming the Court actually wanted to do so.  (Although assignments don't officially come out until the end of a sitting, the Court votes on cases at a series of conferences over the course of the sitting, and it could make an exception to assign a case on the earlier side at one of those conferences.)

The briefing schedule did not prevent the Court from scheduling the case for the first week of October. When the Court granted certiorari, it imposed the typical briefing schedule under Supreme Court Rule 25—meaning the government’s brief will be due August 10th; and Hawaii and IRAP’s brief 30 days after that (I think September 11th, but I may have counted wrong).  The government then has a reply.  While the Court’s rules allow for 30 days to file a reply, the rules also specifically contemplate that the period to file a reply would be shortened where oral argument is scheduled less than 30 days after a respondent’s brief is due:  The rule provides that a petitioner must file a reply brief at least one week before oral argument in a case.  Had the Court scheduled the entry ban cases for the first week of October, the government’s reply brief would have been due somewhere between September 25th and 27th, which is hardly an unreasonably short period to file a reply brief.  (For example, in Welch v. United States, the reply briefs had to be filed 15 days after the respondent’s brief, in order to accommodate the scheduled date of the oral argument in the case; in the entry ban case, the government's brief would have to have been filed between 14-16 days after the respondent's brief.)

The Court’s decision not to schedule the entry ban case for the first week of October might be further evidence of what several commentators identified in the Supreme Court’s June 26 decision and order—an inclination to never decide the case on its merits. When the Court granted the petitions for certiorari, it knew full well that the order’s provisions were temporary; that fact was featured prominently in the certiorari briefing and stay briefing. 

While the Court’s scheduling of the entry ban case may not provide it with the time to decide the case, it does put the Court in a position to order additional briefing on whether the case is moot before the Court even hears argument.  That may be an attractive approach to the extent the Court doesn’t even want to discuss the merits of the case at oral argument, in addition to not wanting to write about the merits of the case in an opinion.  The entry ban expires September 24th, and the respondents’ briefs will be due around September 11th.   The Court could request briefing on whether the case is moot some time after September 11th, when each side will have filed its opening brief.  It could even request briefing on whether the case is moot after September 24th and still have the briefing before the oral argument. After all, the Court gave Hawaii four days to file a response to the government’s motion to clarify the scope of the injunction, and two of those days were weekends. And if the Court ordered additional briefing on September 25th, it could give both sides a week to file a brief and still have the briefs a week before the oral argument.

This account of the Court's scheduling suggests that the Court is continuing to maneuver to avoid having to say anything on the merits of the case. 

It’s worth pausing again over the fact that the Court has now repeatedly chosen to wade into the entry ban cases even though it appears to have no inclination or intention to say anything about the merits. On June 26, the Court partially stayed the injunctions against the entry ban, the refugee suspension, and the refugee cap. Then, last week, the Court also partially stayed the district court’s modification/clarification of the Supreme Court’s injunction; the district court’s ruling had enjoined the government from carrying out its mockery of an “interpretation” of the scope of the injunction.

Part of what is troubling about the Court’s tinkering with the executive order and related injunctions is that the Court has never actually confronted the gaping hole on the government’s side of the case—the utter lack of  an actual national security determination, or explanation that doesn't look like hand waving.  The government’s arguments for the order amount to: the President said so; conditions in the country are bad (which tells us nothing about refugees, nationals who have lived elsewhere, or nationals of other countries who have visited the countries subject to the ban); and the AG and Secretary of DHS (now Chief of Staff) concur in the President’s say so.

Now consider the other side of the equation. It is true, as the Court explained in its June 26 order, that the equities are different with respect to persons who have a relationship with a person or entity in the United States than with respect to persons who do not.  Excluding the latter category of persons would not directly harm a person or entity in the United States; excluding the former category of persons would. But so what, when the equities on the other side, the government’s, are so flimsy?

Consider an example.  Last week, a district court in D.C. addressed the case of two Iranian women who are seeking refugee status in the United States.  The women would be persecuted in Iran because of their sexual orientation.  But the women do not have a relationship with a person in the United States, or an entity in the United States (at least under the government’s interpretation of the executive order).  Do the equities in that case merit the women’s categorical exclusion from the United States? 

The case illustrates another problem with the Court’s failure to confront the shortcomings of the government’s case for the order*. When the President signed the first version of the entry ban and refugee suspension, the order contained the following paragraph:

In addition, the United States should not admit those who engage in acts of bigotry or hatred (including "honor" killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.

(The current version of the order still contains a reference to honor killings and violence against women.)  It was never that difficult to see through the President and the President's surrogates' efforts to cast anti-Muslim ideology in terms of a “pro-LGBTQ” and “pro-women” agenda.  The administration’s behavior in the first six months more than discredits any claim that they are interested in a “pro-LGBTQ” or “pro-women” agenda:  DOJ is arguing that civil rights laws do not protect LGBTQ individuals from workplace discrimination, and the President stated on Twitter that trans individuals would no longer be allowed to serve in the military.  The administration has also gutted women's access to health care abroad, and enabled states to do the same domestically (and attempted to do so nationally). The D.C. case further underscores how ridiculous the government’s purported justification for the executive order is—if the administration’s interest was in securing the rights of LGBTQ individuals, it would not have excluded LGBTQ individuals who were seeking refugee status in the United States because their sexual orientation put them at risk of violence and persecution in their home countries.  

 

*For a story about the Court's decision to stay the district court's injunction holding that persons who have received assurances from refugee resettlement agencies are not subject to the suspension of the refugee program, thus allowing the suspension to be enforced against those persons, see here.

 

 


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