In defense of President Trump’s revised travel ban, the U.S. Solicitor General’s Office—perhaps the most revered legal office in the country—is making arguments to the Supreme Court that are belied by reality.
In its recent briefing to the Court, it represents that the government views the ban as “an urgent objective of the highest order.” It says that “no governmental interest is more compelling,” that the ban is essential to national security, and that failure to reinstate the ban will cause irreparable harm. These representations are critical to the government’s argument, given the extraordinary relief it is seeking (which includes a stay of a Hawaii district court injunction before the Ninth Circuit has even had a chance to rule on it).
The problem is they border on insincerity considering the deliberate—and purely political—delay that featured in the Administration’s strategy up until this point.
Recall that the revised travel ban began with open and deliberate political delay: After acknowledging that it had been finalized, the Administration decided to postpone its issuance for five days due to positive media reception that followed the President’s State of the Union address. As I lay out below, a willingness to place political strategy over expedience remained characteristic throughout litigation in the courts below.
Government lawyers know how to get a truly urgent case to the Supreme Court extremely fast. Any government lawyer who didn’t know was taught first hand in the context of President Trump’s first travel ban. There, within approximately 24 hours of Judge James Robart’s decision blocking the ban, the Administration filed an emergency motion with the Ninth Circuit, asking for an emergency administrative stay and a stay pending appeal. The administrative stay was denied that same day and the stay pending appeal was denied in a written opinion five days later. In other words, the government was able to obtain an order that could have been taken to the U.S. Supreme Court within one day (or, at most, five days if it wanted a written opinion to challenge).
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When it came time for President Trump’s revised travel ban, however, the Administration took a decidedly unhurried approach (it is probably not happenstance that the change in fervor coincided with the Justice Department, State Department, and Homeland Security’s opportunities to analyze the actual import of the ban). In addition to the purely political State-of-the-Union delay, once litigation began and the revised Executive Order was enjoined, the Administration decided not to pursue any emergency options that were available to it. Instead, it delayed its own briefing and proposed briefing schedules that are inconsistent with the notion of an urgent national security demand.
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In total, the delay attributable to (or proposed by) the Administration was approximately two months. These illustrations are even more stark when compared side-by-side and to-scale, demonstrating just how vigorously the Administration could have, but did not, pursue its defense of the ban.
Why the delay? Shortly after the revised ban was issued, I predicted that the Administration would likely seek to delay any possibility of Supreme Court review until it was assured that Justice Neil Gorsuch would be on the bench, on the theory that this would maximize the possibility of prevailing and the Administration would prioritize the political benefit of a positive outcome. As the illustration above shows, the Administration’s proposed briefing schedules coincide nicely with the start of Justice Gorsuch’s confirmation hearings (which began on March 20, 2017) and provided sufficient buffer to virtually guarantee that he would be on the Court before the courts of appeals were in a position to issue a decision. Once Justice Gorsuch was confirmed (April 6), the Administration went directly to the Supreme Court just six days after its first realistic opportunity to do so, without even waiting for the Ninth Circuit.
Whether the Administration’s political calculation will pay off is anyone’s guess. What is clear, however, is that its actions are not consistent with an honest belief that the revised travel ban concerns an urgent national security objective. Indeed, the Administration appears to be treating the Court as though it were the purely "political" institution that President Trump believes it to be.