The Supreme Court today lifted parts of the injunction against Donald Trump’s executive order “travel ban,” and agreed to consolidate and hear the government’s appeal of decisions in the Ninth and Fourth circuits.
One of these days, the Congress will demand that the Courts tell us who voted how when they decide to grant cert, but until then we’re left with this per curiam decision explaining why the Court lifted parts of the injunction, and left other parts in place. The main takeaway is this: the Court upheld the injunction as it pertains to people with a “bona fide relationship with a person or entity in the United States.” The injunction is lifted against foreign nationals, including refugees, with no claim to any person or institution in the United States. From the ruling:
The injunctions remain in place only with respect to parties similarly situated to Doe, Dr. Elshikh, and Hawaii. In practical terms, this means that §2(c) may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of EO–2
Most Law Firms’ AI Strategies Have a Big Blind Spot. Here’s How One Am Law 200 Firm is Solving It.
Most law firms, big and small, that have adopted AI are making the same mistake: they bought a tool for their lawyers and called it a strategy.
This point bears repeating again and again, because we know what’s going to happen next. Government officials, airlines, and any number of teapot despots wearing a badge will try to block entry into this country for people who are allowed to come here. If your family is here, if your school is here, you are still allowed to come here. The Travel Ban is still enjoined for those people. But I don’t trust average officials to understand that so, lawyers, time to spring into action. People at JFK and SFO and LAX are going to need your help.
But those are just the practical concerns. The larger issue is of course the constitutionality of the whole scheme, and that is now up for Supreme Court review this Fall. Today’s opinion, though per curiam, really sounds like it was written by Chief Justice John Roberts, and if this represents his thinking on the Travel Ban issue, those of us who stand against state-sponsored bigotry have cause to be concerned.
By lifting even part of the injunction, there’s the suggestion that there is some Constitutional way to ban people for no other reason than that they’re from Muslim-majority countries we don’t like. I feel like I have to say this, given what America has become, but not everybody from Muslim-majority countries are terrorists. Banning people, based not on what they’ve done but based on what other brown people in their countries have done seems obviously wrong to me. Banning children seeking asylum because they’re from a “bad” country seems wrong and immoral to me.
And yet it didn’t seem obviously morally and Constitutionally wrong to a majority of the Court. That’s not cool.
Opus 2 Steps Up Its AI Game With Acquisition Of A Legal Tech Startup
With the addition of Uncover’s technology, the litigation software is delivering rapid innovation.
In reinstating the ban against foreign nationals with no connection to the United States, I find this line of reasoning, potentially from Roberts, particularly troubling:
At the same time, the Government’s interest in enforcing §2(c), and the Executive’s authority to do so, are undoubtedly at their peak when there is no tie between the foreign national and the United States. Indeed, EO–2 itself distinguishes between foreign nationals who have some connection to this country, and foreign nationals who do not, by establishing a case-by-case waiver system primarily for the benefit of individuals in the former category. See, e.g., §§3(c)(i)–(vi). The interest in preserving national security is “an urgent objective of the highest order.” Holder v. Humanitarian Law Project, 561 U. S. 1, 28 (2010). To prevent the Government from pursuing that objective by enforcing §2(c) against foreign nationals unconnected to the United States would appreciably injure its interests, without alleviating obvious hardship to anyone else.
If you buy the government’s “national security” interest in this case, you’ve given away half the game. The problem with the ban is that it has nothing to do with “national security.” The government has not produced any credible evidence or argument that banning people and children based on country of origin enhances our security one whit.
The Court seems to fall for the “peak” executive authority of national security, without any discussion of whether the executive is actually acting on the basis of legitimate security interests, and seems to suggest that a “case-by-case waiver system” might be okay.
So if you’re from one of the majority-Muslim countries we have a problem with, we’re going to assume you mean to do us harm, but have a waiver system if you can prove you are… normal? Is that the freaking standard? Has our grand American experiment in religious freedom and tolerance devolved to this?
All is not lost, however. One theory I will be telling myself to help me sleep tonight is that the Court is just setting up the Trump administration to slap it around with a “mootness” ruling this fall.
You’ll remember that the Travel Ban, and Travel Ban 2.0 were “temporary” bans. The administration needed time to “figure out what the heck is going on.” The administration has made the (entirely spurious) argument that the injunctions against the Travel Bans have also forced them to stop “figuring out” whatever the hell they need to figure out.
Think about how stupid that argument is. Here, the president is arguing that we are facing an emergency threat from people seeking entry to the country, that the only way to meet that threat is to have “extreme vetting,” but because of a court ruling the administration cannot think through what “extreme vetting” actually means. It’s an emergency, but we can’t figure out what to do because of “so-called judges.”
Whatever. If the administration argues it couldn’t start the process of “figuring things out” already, they’ll surely have enough time to get it done by the Fall. Today, the Court is giving Trump all the rope he needs. This language here is quite a directive:
In light of the June 12 decision of the Ninth Circuit vacating the injunction as to §2(a), the executive review directed by that subsection may proceed promptly, if it is not already underway. EO–2 instructs the Secretary of Homeland Security to complete this review within 20 days, after which time foreign governments will be given 50 days further to bring their practices into line with the Secretary’s directives. §§2(a)–(b), (d). Given the Government’s representations in this litigation concerning the resources required to complete the 20-day review, we fully expect that the relief we grant today will permit the Executive to conclude its internal work and provide adequate notice to foreign governments within the 90-day life of §2(c).
Furthermore, the Court specifically instructed the lawyers to be prepared to answer the mootness question:
In addition to the issues identified in the petitions, the parties are directed to address the following question: “Whether the challenges to §2(c) became moot on June 14, 2017.”
If you will allow me to put some tea leaves into my magic eight ball and swirl it around in a solution of wishcasting: I’ll say that Roberts thinks it’s okay for the President of the United States to be bigoted towards whoever he wants as long as they’re “foreigners” we’re “at war” with, but he won’t have to say it like that because this executive order will be moot by the time he considers it.
Travel ban decision [Supreme Court]
Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.