The travel ban litigation is pressing forward. On Thursday, the government filed a petition for certiorari to the Fourth Circuit, as well as a request for a stay of the Fourth Circuit decision and the district court of Hawaii decision (which the government asked the Court to construe, in the alternative, as a petition for certiorari before judgment to the Ninth Circuit). On Friday, the Court ordered the plaintiffs to respond to the petition for certiorari (and the stay requests, apparently) by June 12. Since then, the President has made several statements that call into question the DOJ's defense of the ban, and the ban's legality.
There is some confusion over when and whether the case may become moot. On one reading of the executive order, which Marty Lederman explained, the entry ban dissolves June 14. On another reading, explained by Will Baude, the entry ban lasts for 90 days after it actually goes into effect.
In a post responding to Will, Marty suggested that the government’s arguments on timing and mootness shed some light on the merits of the challenge to the entry ban. Specifically, the government’s conduct during the travel ban litigation is further evidence that the government’s national security rationale for the entry ban is weak, and that something else (namely, the President’s desire to exclude Muslims from entering the United States, which he has repeatedly shared) is what is driving the entry ban.
How does it do so? The order stated that it was necessary to suspend entry into the United States from the six Muslim-majority countries so that the administration could conduct an “internal review process.” Section 2(a) of the order states that the “The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall conduct a worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public-safety threat.”
The government’s briefing in both the Supreme Court and 9th Circuit maintains that it has not been able to complete the internal review process because the district court in Hawaii enjoined that part of the order (section 2(a)). (The Fourth Circuit Court of Appeals enjoined only the entry ban.)
The problem for the government, however, is that it could have easily completed that internal review process by now. Readers who have been following this case know that the current executive order is a follow on to a prior order. The current executive order (EO 13780) was signed March 6, and went into effect March 14. But the President had signed another order (EO 13769) on January 27. EO 13769 (EO #1) also suspended the entry of foreign nationals into the United States from several Muslim majority countries (seven, instead of six). EO #1 also called for the same internal review procedure that EO #2 does. Section 3(a) of the EO #1 provided that “The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat. EO #1, like EO #2, established a new cap on the number of refugees that the United States would accept. EO #1 also had several other provisions that EO #2 lacks (in particular, a preference for religious minorities and an indefinite ban on entry of Syrian nationals, including refugees).
So the internal review process was supposed to begin on January 27. Nothing prevented the government from starting the internal review process then. The district court in Washington v. Trump (and the Ninth Circuit) did not enjoin the government from conducting the internal review procedures that were called for by EO #1 (i.e., section 3(a) of EO #1). Section 3(a) of EO #1 called for the internal review procedures to begin, and section 3(b) directed the relevant Secretaries to submit to the President a report on the results of the review within 30 days.
Did that review ever happen? The government has never suggested any review actually occurred. The government’s papers in Trump v. IRAP and Trump v. Hawaii make vague reference to purported consultations between the President and the Attorney General and Secretary of Homeland Security. But the government has not ever put into the record any kind of report about the “information needed for adjudications and a list of countries that do not provide adequate information,” which is what the internal review process called for. Nor has it suggested such a report might exist.
How does this relate to the merits of the challenge to the entry ban? First, despite the government’s professed desire to collect evidence and review entry procedures, there is no indication that the government ever attempted to carry out that part of EO #1, and part of the internal review process could have been completed before EO #2 rescinded EO #1. EO #2 was signed over 30 days after EO #1 was signed, and EO #1 called for some report to be created within 30 days.
Second, the government chose to rescind the part of EO #1 which called for the creation of the internal review process, even though that portion of the EO had not been enjoined. When the President signed EO #2, he chose to rescind all of EO #1 (including the portions of it which called for the internal review process, and which had not been enjoined). If the government were really concerned primarily with gathering information to ensure entry procedures are sufficiently robust, it would have taken measures to ensure that it collected the relevant information as quickly as possible. That would have meant keeping the portion of EO #1 calling for the internal review process in place. The government didn’t care enough about gathering information to ensure that happened. That omission may be just another instance of incompetence. But the government’s failure to take those steps is another indication that malevolence may be driving this particular order.
Even beyond that, the President could today sign another executive order directing a review of the government's vetting procedures. He could have done that any time since the second order was signed. But he hasn't.
Third, the government’s purported reading of the “effective date” of the order undermines the argument that it is necessary to suspend entry so that the government can study its entry procedures. According to the government’s interpretation of the entry ban’s effective date, the entry ban lasts for 90 days, running from whatever day the entry ban is allowed to go into effect. That means the entry ban could go into effect well beyond the completion of the internal review procedure given that the order represents the internal review procedure would take only 90 days, which is why entry was suspended for only 90 days.
Imagine that the district court in Hawaii had not enjoined the internal review procedure. According to the government’s reading, the “entry ban” would still be effective for 90 days whenever it was allowed to go into effect, even though the 90 days that it would purportedly take to complete the internal review process had passed. But what if the entry ban were allowed to go into effect more than 90 days after the order had been signed (as the government is hoping would happen in that case). There would be no reason to suspend entry under those circumstances unless the administration wants to suspend entry for some reason other than verifying that entry procedures provide adequate security.
Fourth, the government’s purported reading of the “effective date” of the order undermines the national security rationale because it means that whatever information purportedly justified the order in January/March would have become stale. Again, according to the government’s representation of the entry ban’s effective date, the entry ban lasts for 90 days, running from whatever day the entry ban is allowed to go into effect. What if, after protracted litigation, that would mean the entry ban goes into effect six months from when it was supposed to? Or that it goes into effect a year after it was supposed to? By that point, whatever “national security information” may have existed for an entry ban would have become stale: Even if there was some intelligence supporting a 90-day entry ban that began in January/early March 2017, why would that same intelligence support a 90-day entry ban that began in June 2017, or January 2018?
The government’s interpretation of the entry ban’s effective date thus severs the link between the internal review process and the entry ban, as well as any link between the purported “consultations” and “determinations” that justified the entry ban. That, together with the seeming unimportance of the internal review process to the government, makes clear that what the government really wants is an entry ban. It doesn’t care when the entry ban is in place; it doesn’t care whether any of its purported reasons for the entry ban might justify the ban. It just wants that ban on entry from several Muslim majority countries. It wants the ban whenever it can get it.
The government’s briefing underscores that the government thinks that the lack of an entry ban is what harms the government, not the suspension of the internal review process (or the lack of an entry ban while the internal review process has yet to be completed). The government requested a stay from the Fourth Circuit’s injunction, even though that injunction does not prevent the government from conducting the internal review process. In that brief, the government wrote that “preventing the Executive from effectuating his national-security judgment will continue to cause irreparable harm.” And in the brief accompanying the motion to stay the district court of Hawaii’s decision, which did enjoin the internal review process, the government again emphasized the national security determinations that justified the entry ban, regardless of the internal review procedures: “the President made the national-security judgment that conditions in those countries may render them unable or unwilling to provide our government with information needed to detect possible threat.” In the section addressing irreparable harm to the government, the government again emphasized the harm from suspending entry independent of suspending entry while an internal review process was going. (“Enjoining Section 2’s temporary entry suspension and Section 6’s temporary refugee suspension -- which reflect a national-security judgment of the President and Cabinet-level officials -- threatens a harm far greater in magnitude than enjoining the state law-enforcement tool at issue in King.”)
So let’s take a step back. What reason might the government have for wanting a ban on entry from several Muslim majority countries, completely irrespective of when that ban begins? I can think of one. It’s what the President and members of his administration have been telling us justifies the entry ban all along—they want to limit the number of Muslims entering the United States.
The government’s purported “national security” rationale for the entry ban has always been transparently thin; the government’s conduct over the last six months is just further evidence of that. Just consider the timeline. In January, the government represented that the ban on entry was merely in place until the completion of the internal review process. Then, in March, the government represented that the Attorney General and Secretary of Homeland Security made a "determination" that (surprise!) justified a ban on entry from the same countries (save one) the initial order had chosen to ban entry from, without any intelligence or any consultations. To support that "determination" the government offered its ipse dixit. And when the President signed the second entry ban, he chose to pretermit the internal review process that purportedly justified the ban, and that could have been completed by now.
The government’s conduct with respect to these executive orders has been a mess from the get go (anyone remember airport weekend?). But it continues to look like a mess that’s driven in substantial part by animus toward Muslims, which the President's most recent statements only serve to underscore.