Today, the government filed its reply brief in the travel ban litigation. Marty Lederman has already explained how the brief does nothing to ameliorate the deficiencies the order has under section 1182. (Section 1182 allows the President to suspend entry only if the President has made a judgment that the entry of a class of aliens would be detrimental to U.S. interests. The order stated and DOJ has argued the ban is a necessary stop gap to allow the government to obtain more information pursuant to its internal review of entry procedures (more on that in a second). So the premise of the ban and the internal review process is that the President does not currently have enough information to amend entry procedures. If that’s true, there hasn’t been the kind of determination that section 1182 requires.)
I wanted to focus on the government’s (lack of) response to a point Hawaii made that Steve Vladeck and I had also flagged (and I’ve been repeating to anyone who will listen)—namely, that the President’s “clarifying memorandum” eliminates the government’s stated purpose for the entry ban, which was to allow for the internal review process. The government’s response, as best I can tell, is “YOU MADE US DO IT.” See Br. at 1-2 (“[R]espondents claim that it is somehow the President’s action—rather than the injunction in their own case—that has undermined the order.”). That is, the government argues that were it not for the injunctions, the President would not have had to “sever” the connection between the entry ban and the government’s review of entry procedures.
The argument is true as far as it goes. (Yes, the President would not have had to issue the clarifying memorandum if the entire order had gone into effect in March.) But it’s utterly unresponsive to Hawaii’s point.
If it were plausibly true that the government could not review its entry procedures without an entry ban (which is now the government’s argument for a stay), then the President should have made the effective dates of the two provisions run together. He didn’t do that. (I’m glossing over the utter lack of any explanation for why the government cannot simultaneously review existing entry procedures while also adhering to the current set of entry procedures and processing applicants for entry. That problem has bedeviled the order from the outset. DOJ’s briefs have not offered a reasonable argument, or really any argument, for why the government cannot walk and chew gum at the same time—as the government is doing with respect to every other country except for those named in the entry ban, where the government is “reviewing” entry procedures and processing applicants for entry. Section 2(a), which calls for the review process, establishes “a worldwide review.”)
Aside from making the effective date of the review process and entry ban run together, the President could have amended the order to allow the entry ban to begin if the review of entry procedures had not yet completed. But he didn’t do that either. Instead, the President made the process of reviewing entry procedures begin now, while preserving the option for an entry ban after that process has finished. Why would he want that option? Hmmm……
The government’s response also notably offers no other justification for the entry ban aside from that it is a temporary pause to allow the government to complete its review of entry procedures. That is, as Marty noted, the government continues to insist that the entry ban is tied to the review of entry procedures, and that the justification for the entry ban is (inexplicably) still to allow the government to review its existing entry procedures. But as Steve and I explained, that cannot be the justification for a ban that is written to go into effect after the review process has finished. DOJ offers no other justification for the entry ban in the brief. Yes, this brief isn’t a brief on the merits. But it would be nice to have something to substantiate DOJ’s repeated references to “national security” besides just hand-waving, especially when "national security" is the core of DOJ’s arguments for why the courts of appeals decisions were wrong, and why a stay is warranted.
Moreover (this point is nitpicky), the President’s “clarifying memorandum” merely purported “to amend the Executive Order” “[t]o the extent it is necessary.” That is, the President’s memo represents that the order has always said that each provision would go into effect independently if necessary. (Marty noted this as well when he dismissed as implausible the claim that the President was merely clarifying the memo.)
Of course, the President “had” to amend the order in the sense that the challenge to the entry ban would have otherwise become moot. But again: So what? The mere fact that he and the administration wanted the Supreme Court to review the order on its merits does not offer a legitimate, national-security-related justification for a floating entry ban that is now unconnected to the government’s review of its entry procedures. If no Supreme Court review were possible given the timing of the order (the entry ban is supposed to last for 90 days), the government could have sought Supreme Court review earlier, or a vacatur of decisions it did not like if the case had become moot. Wanting to get a “W” at the Supreme Court does not make the order look any more like something that was done in the name of national security.
The big point is that it doesn’t really matter whether the President issued the clarifying memorandum in response to the injunctions or possibility of mootness. The key point—and the problem for the administration—is that the entry procedures are not now, and perhaps were never formally linked to the government’s review of its entry procedures. And that’s been the government’s defense of the entry ban all along, which makes the government’s challenges to the Fourth Circuit and Ninth Circuit Court of Appeals decisions even weaker than they already were. That weighs against the government’s stay requests, despite the government’s attempt to use the clarifying memorandum and the plaintiffs’ reliance on it to support their stay requests. Whether a stay is warranted depends on whether the government has established that the enjoined provisions cause the government irreparable harm, which the government has tied to national security. But the clarifying memorandum further reveals those “national security” rationales to be a sham.