Marty Lederman // 6/15/17 //
Cross-posted from Just Security.
Section 2(c) of Executive Order 13780, suspending entry into the United States of all nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen, died of natural causes at 12:01 a.m. Wednesday morning, without ever having been implemented. In a pair of posts last week, I explained why the ban expired as a simple matter of the terms of the Executive Order itself. In a filing before the U.S. Court of Appeals for the Fourth Circuit, the government itself agreed, representing—after two courts had enjoined the entry ban—that “Section 2(c)’s 90-day suspension expires in early June.” And in Part I of its brief for the International Refugee Assistance Project in opposition to the government’s cert. petition, the ACLU agreed, too.
The five-month-long legal battle over the ban, therefore, ought to have come to an end yesterday, because the ban itself was no more: It had ceased to be.
Yesterday afternoon, however, mere hours after the entry ban expired, Donald J. Trump breathed new life into it by amending the Executive Order, just as I suggested he might do. (I’m fairly certain this is the first time Trump has ever heeded my advice—and it’ll undoubtedly be the last.) In a memorandum to four cabinet officials, he wrote:
In light of questions in litigation about the effective date of the enjoined provisions and in the interest of clarity, I hereby declare the effective date of each enjoined provision to be the date and time at which the referenced injunctions 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.
Pursuant to this amendment, the entry ban will run for 90 days, beginning whenever (if ever) it is no longer enjoined. [An aside: My suggestion was a bit different—namely, that the President might amend the Order so that the entry ban period is tethered to the period of the internal, country-by-country “review” of procedures prescribed elsewhere in Section 2. Under the new Trump memorandum, however, some or all of the 90 days might run well after the internal review is completed, thereby largely undermining the purported rationale for the ban. A bit more on this below.]
So what does the new, prospective effective date of the entry ban (as opposed to the E.O. itself) mean for the government’s pending requests before the Supreme Court?
The Acting Solicitor General has filed a petition for certiorari in the Fourth Circuit case, Trump v. IRAP, No. 16-1436, and in the next few days he will, I expect, file a similar petition from the decision issued Monday by the Court of Appeals for the Ninth Circuit in Hawaii v. Trump. In addition, he has petitioned the Court to stay the injunctions in both cases. [UPDATE: On Thursday, the government filed a supplemental brief in support of the application for a stay of the injunction in the Ninth Circuit case. In that filing, the Acting Solicitor General requested the Court to construe its stay application as a second petition for a writ of certiorari, so that the Court can hear the Hawaii case "in tandem with IRAP."] It now appears that the Justices will consider the petition(s) and the stay applications at their final Conference of the Term, next Thursday, June 22.
If the President had not acted to alter the period of operation of the entry ban, then that would have been the end of the matter—the Court should have denied the petition(s) and the stay applications because there was no continuing dispute about any operative government action. Now that the President has revived the (enjoined) ban, however, the Court must decide how to dispose of the Solicitor General’s petitions and the stay applications.
In this post I’ll briefly explain why, in light of the Ninth Circuit’s decision on Monday, there’s no good reason for the Court to grant any of the government’s petitions or applications.
The Petition(s) for Certiorari
Recall that the Solicitor General is asking the Court to grant certiorari so that it can hear argument in the IRAP case during its next Term, which begins on October 2.
The Court of Appeals for the Ninth Circuit did two very important things in its decision on Monday that, singly and together, virtually eliminate any basis for granting cert. in either case. By virtue of the court of appeals’ decision, it is virtually certain that the entry ban of Section 2(c) will not be in effect come October, when the new term of the Court commences.
First, in their per curiam opinion the three judges on the court of appeals embraced an argument I had suggested in an earlier post: They avoided the thorny Establishment Clause questions in the case, and instead held that the President acted without statutory authority under 8 U.S.C. 1182(f), because there is no evidentiary, logical or rational basis for the national-origin-based discrimination at the heart of the ban, or for the President’s nominal “finding” that the entry of the nationals of six particular nations would be “detrimental” to the interests of the United States: “[T]he Order does not offer a sufficient justification to suspend the entry of more than 180 million people on the basis of nationality.” In the earlier Fourth Circuit decision, Judges Keenan and Wynn offered similar “ultra vires” arguments in their separate concurrences. (There are some differences in the reasoning of the three statutory opinions, but they aren’t worth parsing here—suffice it to say that all three of the opinions are useful in illustrating why section 1182(f) does not authorize the ban. To like effect, see Part II-B of Judge Thacker’s concurrence.)
I have thought from the start that the cases should be resolved on this nonconstitutional ground–one that avoids difficult First Amendment questions, and that would result in a much narrower holding, one that would have a much more modest precedential effect. [See this post of mine from May, and my colloquy with Rick Hills in Comments to his post here.] Until now, the parties had barely focused on the “ultra vires” argument, but the court of appeals’ decision should change that. Indeed, in its opposition to certiorari in the Fourth Circuit case, the ACLU wisely argues, in the alternative, that section 1182(f) does not authorize the entry ban (pp.34-36). If the Supreme Court does ever reach the merits of the case, I think this argument should, and likely will, be the basis for its decision. In the meantime, the plaintiffs’ likelihood of success on the absence-of-authority claim provides a powerful reason to deny the cert. petitions and the stay applications, whatever one’s views might be on the Establishment Clause claims.
Second, and perhaps even more importantly for present purposes, the Ninth Circuit panel properly ruled (see pages 70-71) that Judge Watson’s injunction is overbroad—that there is no legal basis for precluding the Department of Homeland Security from performing the “internal” review of country-specific “screening and vetting protocols and procedures” that is the primary function of section 2 of the Executive Order. This narrowing of the injunction is very significant because, as I explained at greater length here, the (nominal) purpose of the entry ban was only to preclude nationals of the six nations from entering the U.S. during that internal DHS review. The review itself is designed to study whether new or different entry protocols and procedures are necessary for persons coming from those and other nations. At the end of the review, the Secretaries of State and Homeland Security, and the Attorney General, may recommend country-specific “lawful restrictions or limitations deemed necessary for the security or welfare of the United States” (section 2(e)), and presumably the government will implement some or all of those recommendations.
The district court judge should lift the invalidated part of his injunction as soon as the court of appeals issues its mandate. Last night, the parties asked the court of appeals to do so without delay. Therefore it is likely that DHS can begin its internal review early next week. (In his memorandum, the President ordered the Secretary to begin the review “72 hours after all applicable injunctions are lifted or stayed with respect to [Section 2].”)
Within three weeks, the DHS Secretary should—if he complies with the President’s directive—issue a report to the President identifying whether additional information is needed from each and every foreign country to adjudicate whether a national of that country applying for a visa, admission, or other immigration benefit is a security or public-safety threat. (Sections 2(a)-(b).) Then the Secretary of State must request such additional information from the identified countries where there is such a need (Section 2(d)); and, 50 days after that, the Secretaries and Attorney General must recommend any new “lawful restrictions or limitations deemed necessary for the security or welfare of the United States,” in light of how the contacted nations have responded to the new information requests concerning their nationals (Section 2(e)). The Executive Order contemplates that this whole process should not take more than three months. The new rules, in other words, should be in place before the first Monday in October.
This fact significantly affects how the Court should treat the government’s cert. petitions. To see why, let’s look at two possible scenarios:
i. If the Court grants the government’s applications for stay of the injunctions, then the entry ban itself will begin to run next week and will expire in 90 days—that is to say, before October 2. Thus, on the government’s proposed timeline, there will be no Section 2(c) entry ban in place for the Court to review.
ii. But even if the Court allows the injunctions to remain in place—indeed, regardless of whether the injunctions remain in place—the ostensible rationale for the entry ban will disappear come September or October. The purported reason for the entry ban, recall, is to provide a placeholder regime while the review process is ongoing. That review process, however, will be completed by October, and new country-specific procedures and limits will then be in place (assuming the relevant officials comply with the Order). Those new rules might include entry prohibitions against nationals of some specified nations—but they might not. The nations affected might be the six at issue in the entry ban—or perhaps not. There could—and probably will—be an entirely new constellation of affected nationals and entry restrictions, based upon an (allegedly) comprehensive agency review, the results of country-specific diplomatic negotiations, and a much different and (one assumes) more robust factual record. But we don’t yet know what they’ll be.
Presumably, those new entry restrictions will be subject to legal challenge—particularly if they include any entry bans for nationals of particular countries. If so, however, that challenge will be a new one, addressed to a new policy that is predicated upon a different historical, administrative and diplomatic record.
All of which is to say that the Section 2(c) entry ban will have been overtaken by events by the time the Court hears the case. Either the ban will have expired, or it will have outlived its function. As far as I can tell, the Acting Solicitor General does not explain in his petition why the Court should grant cert. under such circumstances. And I can’t think of any good reason.
[NOTE: To the extent the President’s memorandum is construed to permit the entry ban to continue in place even after the internal agency review is completed–e.g., if that happens to be when the 90-day period expires after any injunctions are lifted–that would further undermine the reasons the government has offered for the ban, i.e., as a temporary placeholder rule during the span of the internal review, and thus give further ballast to the argument of the court of appeals that Section 1182(f) does not authorize the ban. Leah Litman and Steve Vladeck will have a post on this aspect of yesterday’s memorandum shortly.]
The Applications for Stay of the Preliminary Injunctions
The real action in these cases, then, is–or at least it ought to be–on the government’s applications for stays of the preliminary injunctions, more so than the petitions for certiorari. The fate of those applications will determine what happens to the entry ban while the Secretary’s internal review is ongoing, before the start of the Court’s next term.
There are several good reasons why the Court should deny those applications. The first is the most obvious: The applications are, by their terms, for stays “pending disposition of [the IRAP] petition [for cert.].” If the Court denies that petition, as I argue above that it should, then the stay applications will themselves be moot, for nothing will be “pending.”
Let’s assume, however, that the Court holds off until September on deciding whether to grant the cert. petition, or that (for some reason) it grants the petition next week. In that case, what should the Court do now with respect to the government’s applications for stays of the preliminary injunctions?
Because the Court’s disposition of the stay applications would be tantamount to a decision on the merits—after all, the entire case is now about whether there should be an entry ban over the course of the summer, during the “internal review”—the Court might well insist upon full briefing and argument in short order, so that it can issue such a case-dispositive ruling based upon more than what’s in the relatively cursory stay-application pleadings.
Whatever schedule the Court chooses, however, presumably it will not issue a stay of the injunctions unless, at a minimum, five Justices conclude that the government is entitled to prevail on the merits. And, even putting aside the significant Establishment Clause concerns, I would be surprised if five or more Justices are now confident that the President had authority under Section 1182(f) to issue the entry ban—which discriminates based upon a suspect criterion (national origin) that has no demonstrated correlation to domestic terrorism.
There is at least one other compelling reason for the Court to deny the applications for stays, too—namely, the government’s utter failure to demonstrate that allowing the injunctions to remain in place will result in irreparable harm to the nation.
The most startling, and revealing, thing about the Acting SG’s applications for stays, is that they do not even try to demonstrate that the injunctions against the entry ban are causing any harm to national security, let alone irreparable harm. Instead, the SG argues that the government is irreparably harmed by virtue of the mere fact that the President, who “represents the people of all 50 states,” has been prevented from doing something he has decided to do “in his official conduct,” allegedly pursuant to statutory authority. (See, e.g., pp. 33-34 of the Fourth Circuit stay application.) The ACLU does a nice job, I think (see pp. 25-26 of its opposition; see also Part II of Richard Bernstein’s amicus brief for T.A.), explaining why it cannot be the case that the United States automatically suffers irreparable injury any time the President is enjoined from effectuating his chosen policy.
In its reply brief on the stay application, filed this afternoon, the government argues that there is a national-security-related harm that flows from the injunctions–namely, that they stymie a “national security judgment of the President and Cabinet-level officials.” The “judgment” in question, however, is merely the President’s “finding,” in the Executive Order itself, that under the current vetting rules, “the risk of erroneously permitting entry of a national of one of [the six] countries who intends to commit terrorist acts or otherwise harm the national security of the United States is unacceptably high.”
Such an ipse dixit, however—Donald Trump’s mere say-so that the risk associated with certain nationals is “unacceptably high”—is hardly a serious national security “judgment” that warrants judicial credence. As the lower courts in these two cases have explained at length, there is no evidence at all to support the notion that being a national of one of the six nations in itself establishes an “unacceptably high,” or even an increased, risk that the person will commit terrorist acts in the United States after passing through the “extreme vetting” already in place to regulate entry into the nation. In fact, as the ACLU argues (pp.23-24):
[T]he record evidence all points in the opposite direction. The government’s own intelligence analysts concluded that “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity,” C.A. App. 419, and that increased vetting of visa applicants was of limited value in preventing terrorism in the United States. C.A. App. 426; see App. 9a, 54a. Similarly, a bipartisan group of former national security officials, including individuals who had access to relevant nonpublic intelligence information through January 19, concluded that the Order “serves no persuasive national security or foreign policy purpose” and that it will actually “do long-term damage to our national security and foreign policy interests.” Corrected Br. for Fmr. Nat’l Sec. Officials as Amici Curiae Supporting Appellees at 5-8, Doc. 126; see App. 54a.
Moreover, as Richard Bernstein describes, since the injunctions were issued, the Trump Administration has implemented non-nation-specific “enhanced vetting” procedures, and the Acting SG does not try to show, or even assert, that application of those enhanced vetting procedures to nationals of the six countries in question is in any way inadequate to forestall any irreparable harm.
Most telling, perhaps, is that the government did not seek a stay of from the Supreme Court until 118 days after the first entry ban was enjoined, and until 78 days after the Hawaii court first enjoined implementation of the Section 2(c) ban. And yet, as the ACLU stresses, the government has provided no evidence of harm during that four-month period without an entry ban (or during the several years before it was decreed, for that matter), and the government’s leisurely pace in seeking a stay in the Supreme Court belies the notion that irreparable harm will befall the nation if another 90 days goes by under the status quo, “extreme vetting” regime governing entry into the United States.
 Trump’s memorandum also states that “under the terms of the Executive Order” itself, prior to any amendment, “the effective date of the enjoined provisions (as well as related provisions of sections 3 and 12(c)) is delayed or tolled until those injunctions are lifted or stayed.” This is nonsense: the “terms” of the Executive Order said no such thing. But that dispute about the expiration date of the entry ban under the original March Order is now academic, given that the President has amended the effective date of Section 2(c) itself.
 The Acting SG also argues (p.34) that the injunctions inflict irreparable harm because they embarrass the President in his relations with foreign states: “The court’s pronouncement — that the President of the United States took official action based on animus toward one of the world’s dominant religions, notwithstanding his own official statements to the contrary — plainly carries the potential to undermine the Executive’s ability to conduct foreign relations for and protect the security of the Nation.” The fact that the Acting Solicitor General felt he had to rely on such an audacious argument—the suggestion that two district court injunctions against the travel ban are responsible for Donald Trump’s strained relationships with foreign powers—in order to help establish irreparable harm, speaks for itself.
 To be sure, as the Acting SG notes in his reply brief, the President “is entitled to disagree with those sources” and to reach contrary “policy judgment[s].” Here, however, there is no reason to think that President Trump’s disagreements with so many national security experts within the federal government were based on any sober presidential assessment of the evidence; instead, his so-called “policy judgment” was determined before he took office, and was manifestly designed as the fulfillment of a campaign promise that was itself predicated on invidious stereotypes rather than on any reasoned evaluation of evidence demonstrating the inadequacy of existing vetting practices as applied to the nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen.
 Bernstein elaborates:
[O]n March 17, 2017, the State Department adopted enhanced visa screening by requiring longer interviews, more detailed questions by consular officials, and a “mandatory social media review” by the “Fraud Prevention Unit” if an “applicant may have ties to ISIS or other terrorist organizations or has ever been present in an ISIS-controlled territory . . . .” Hawaii II, ECF No. 114-2, at *12, 56, 70 (State Dep’t Cable 25814 ¶¶ 8, 10, 13, available at http://bit.ly/2o0wBqt). On April 27, 2017, the Administration issued a new rule that adds a question to the Electronic Visa Update System, asking for information associated with an applicant’s “online presence,” meaning information related to his or her “Provider/Platform”; “social media identifier”; and “contact information.” 82 Fed. Reg. 19380. On April 29, 2017, President Trump wrote that his Administration was “substantially improv[ing] vetting and screening.” See Donald J. Trump, President Trump: In my first 100 days, I kept my promise to Americans, Wash. Post (Apr. 29, 2017), http://wapo.st/2s7BmUg (“Visa processes are being reformed to substantially improve vetting and screening . . . .”) (emphasis added). On June 1, 2017, the State Department promulgated a new supplemental questionnaire for visa applicants that asks applicants to list (1) every place they have lived, worked, and traveled internationally—including how such travel was funded— for the past fifteen years; (2) every passport they have ever held, including number and country of issuance; (3) names and birth dates of all siblings, children, spouses, and partners; and (4) every social media handle, phone number, and email address they have used for the past five years. U.S. Dep’t of State, Supplemental Questions for Visa Applicants (2017), http://bit.ly/2qBSrpv.