Tuesday, May 30, 2017

The Supreme Court and the "Travel Ban" Order

Mark Tushnet

Reports are that the Trump administration will soon ask the Supreme Court to stay the Fourth Circuit's order upholding the nationwide injunction against the so-called travel ban. Putting aside the merits, I wonder about one aspect of the case's posture. Initially the ban was presented as urgently required so that the government could develop "stronger" procedures for screening applicants for visas from the designated countries; the initial ban would have been applicable to the inety days the government said it would take to develop those procedures. After the Hawaii court entered a nationwide injunction, as I understand it, the Department of Justice moved for a clarification of the order, asking, in particular, that it be allowed to continue to work on the "stronger" vetting procedures. Again as I understand it, the plaintiffs opposed the motion for clarification and the district court denied it without comment. The plaintiffs took the position in the Fourth Circuit that the government could continue to work on developing procedures as a world-wide basis; the Department of Justice apparently had a similar interpretation, that the injunction barred it from working on nation-specific procedures.

From an outsider's perspective, the Department of Justice's position seems unnecessarily strong. But, even if it is a plausible -- or maybe even the only available -- interpretation of the Hawaii injunction, the Supreme Court certainly has the power to stay the Fourth Circuit's decision [modify the underlying injunction] on the Court's own understanding -- or determination -- that the government can resume working on the nation-specific procedures. (One might think that the nation-specific approach is inconsistent with the Fourth Circuit's substantive holding, in that the identification of the nations for stronger procedures is infected by the same impermissible motives as is the ban itself. Maybe so, though to the extent that the substantive holding rests on references to a travel ban, the bad motives might not infect a decision to use stronger procedures.) Modifying the injunction would, I would think, have the advantage of (prospectively) mooting the merits were the Court to hear the case on its usual schedule, because the ninety days needed to develop the new procedures would almost certainly have expired by the time the Court took up the case on the merits.

So: (a) Who on the Court is smart enough to figure this out? [Essentially everyone, I would think.] And, (b) is there anyone who would present the matter in this way to the Court when the government applies for a stay?

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