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June 2, 2017

Cross-posted at Take Care.

Last night, the Acting Solicitor General filed a petition for certiorari in Trump v. International Refugee Assistance Project, the Maryland case in which the U.S. Court of Appeals for the Fourth Circuit recently upheld a preliminary injunction precluding enforcement of Section 2(c) of Executive Order 13780–the provision that suspends entry into the United States from the nationals of six Muslim-majority countries.  The government also moved the Court for a stay of the preliminary injunction, and moved for a stay of another preliminary injunction issued by the district court in Hawaii, one that is slightly broader in scope than the Maryland injunction (see below).  In its motion for a stay of the Maryland injunction, the government also requests “expedited briefing and consideration of its petition for a writ of certiorari,” so that “merits briefing could be completed by the beginning of next Term,” i.e., by October.  That is to say, the government is suggesting that the Court should hear argument late in 2017 and, presumably, decide the case sometime before July 2018.  [More details from Amy Howe at SCOTUSblog.]

As far as I can tell, however, nowhere in its briefs does the government disclose that this urgency is rather beside the point, because by its own terms, the “entry ban” expires less than two weeks from now. 

Section 2(c) of the Order provides that “the entry into the United States of nationals of [the six designated] countries be suspended for 90 days from the effective date of this order.”  And Section 14 of the Order specifically provides that the “effective date” of the Order was 12:01 a.m. on March 16.  Accordingly, the E.O. itself provides that the suspension prescribed in Section 2(c) ends at 12:01 a.m. on Wednesday, June 14, whether or not any courts have enjoined its implementation in the interim.

Notably, the government has confirmed this reading.  On March 24–after the two district court injunctions were in place–the government represented to the Court of Appeals for the Fourth Circuit that “Section 2(c)’s 90-day suspension expires in early June.”

The government was right:  by virtue of the President’s own actions, the suspension is about to expire.  It is true that the entry ban itself has never taken effect, by virtue of the district court injunctions.  The Executive Order, however, does not provide that the ban lasts for 90 days after it goes into effect; it declares instead that the ban expires 90 days after the effective date of the Executive Order–i.e., March 16.  (Importantly, the March 16 “effective date” is not designated merely for purposes of the entry ban, or exclusively for Section 2–it governs a number of the provisions of the Order, as well, including the deadlines for required reports in Sections 5, 8 and 11.)  Nor do the existing injunctions “toll,” or suspend, the “effective date” of the Order–the original deadlines for required reports in Sections 5, 8 and 11, for example, continue to apply by virtue of that March 16 effective date.  Instead, the court orders enjoin the relevant agencies from implementing the entry ban during its (self-imposed) 90-day lifespan.  (The Hawaii preliminary injunction, for example, reads:  “It is hereby ADJUDGED, ORDERED, and DECREED that:  Defendants and all their respective officers, agents, servants, employees, and attorneys, and persons in active concert or participation with them, are hereby enjoined from enforcing or implementing Sections 2 and 6 of the Executive Order across the Nation.  Enforcement of these provisions in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas is prohibited, pending further orders from this Court.”)  The injunctions do not affect the fact that the Section 2(c) ban expires, by virtue of the Executive Order’s own terms, at 12:01 a.m. one week from next Wednesday.

To be sure, the injunction in the Hawaii case has undermined one of the reasons that the President established the June 14th expiration date for the ban.  According to the E.O., the ban was–at least in part–designed as a sort of “stop gap” measure to be employed until the new administration could determine what the “screening and vetting procedures” for all incoming aliens should be.  Sections 2(a) and (b) of the Order direct the Secretary of Homeland Security (i) to “conduct a [20-day] worldwide review,” which was to be completed by April 5, “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,” and (ii) to issue a report to the President on the results of that “worldwide review,” a report that must include the Secretary’s “determination of the information needed from each country . . . and a list of countries that do not provide adequate information.”  Those countries would then have 50 days to provide the requested information.  Section 2(d).  At the end of that additional 50-day period, the Secretary would then “submit to the President a list of countries recommended for inclusion in a Presidential proclamation that would prohibit the entry of appropriate categories of foreign nationals of countries that have not provided the information requested until they do so or until the Secretary of Homeland Security certifies that the country has an adequate plan to do so, or has adequately shared information through other means.”  Section 2(e).

According to Section 1(f) of the Order, the entry ban was designed, inter alia, to reduce the alleged “risk of erroneously permitting entry of a national of one of [the six designated] countries who intends to commit terrorist acts or otherwise harm the national security of the United States” during the Secretary’s “assessment of current screening and vetting procedures required by section 2 of this order.”  Hence the 90-day limit:  The ban was supposed to extend approximately until any new screening procedures were in place.  If all had gone according to plan, the Secretary’s report would have been submitted two months ago, and the entire Section 2 “assessment” would soon be coming to a close, to be followed, perhaps, by promulgation of new entry procedures for some or all countries (not limited to, or necessarily including all of, the six identified countries).
The district judge in Hawaii, however, not only enjoined application of the Section 2(c) entry ban, but also prohibited the Secretary from “enforcing or implementing” all of Section 2 of the Executive Order–including the Secretary’s assessment and report–on the basis of the judge’s determinations that an impermissible religious objective “‘permeated the government’s action,’ and not merely the promulgation of Section 2(c).”  In part because of this aspect of the Hawaii injunction, the Secretary has not even begun the assessment that Section 2(a) calls for, let alone be on the verge of completing it.  [An (important) aside:  This is certainly not merely a function of the Hawaii court injunction.  Under the President’s original Executive Order of January 27, the Secretary was required to complete his assessment and report by February 26–and those provisions of the January E.O. were not enjoined.  Yet there is no indication Secretary Kelly had come anywhere close to completing those steps by March 6, when the new Order superseded the old one.  If the Secretary had done what the President required him to do, the new screening procedures might already be in place, and this entire contretemps would be yesterday’s news–yet another reason for the Court not to be especially sympathetic to the government’s assertions of an urgent need for review of Section 2(c).]
The new screening procedures, that is to say, will not be in place by June 14, as previously expected.  Accordingly, one factual predicate for the 90-day entry ban has not come to pass.
For that reason, it is theoretically possible that the President might issue another Executive Order, extending the entry ban beyond June 14–say, to X days after the Secretary begins the Section 2(a) assessment, rather than to a date certain.  Even if the President were to take that additional step, however, it is very possible that the ban would expire well before the Supreme Court would hear any oral argument in October.  The government has asked the Court of Appeals for the Ninth Circuit to stay at least the portion of the preliminary injunction that precludes initiation of the Secretary’s assessment.  The court of appeals has not yet ruled on that motion, however.  Ideally, the court will do so soon–and there’s a good chance it will dissolve that part of the injunction, which would permit the Secretary to begin his 20-day assessment.  If that happens, then presumably new “screening and vetting procedures” for entry would be in place before the briefing in the case is even completed–procedures that would be based on a different factual record, and that might or might not apply to some or all of the six designated countries (and others, too).  Even in that case, therefore, there’d be little or no justification for granting cert. to review an old (perhaps unimplemented) policy that had long since been superseded.
And, more to the point, in the meantime the President has not altered the end-date of the entry ban, which remains June 14.   Under current law, then, the ban will not be in effect twelve days from now, whether or not the Court stays the injunctions.  Accordingly, there is no reason at present for the Court to act with any urgency, let alone to grant the petition for certiorari.