Will the Supreme Court actually take up the travel ban case on the merits?
Posted September 15
The Supreme Court is poised to hear oral arguments in the travel ban case early next month. But that doesn't actually mean justices will ever decide the legality of President Donald Trump's controversial executive order.
The President's executive order makes clear that travel from six countries (Iran, Libya, Somalia, Sudan, Syria and Yemen) is suspended for 90 days while the secretary of Homeland Security and others submit a report on the results of a worldwide review.
The review is meant to identify what additional information will be needed from each foreign country to make sure that an individual seeking entrance is not a public-safety threat.
The Supreme Court -- responding to a lawsuits from states challenging the ban -- let much of the ban take effect in late June, meaning the 90-day clock started and will hit on or about September 24.
That date raises an important issue that could make the case moot or at the very least crowd out a substantive discussion on the legality of the travel ban. So far the debate has largely been about whether the executive order violates the Constitution or immigration laws. But that could change in the coming days.
"Whether the entry ban persists and if so under what legal authority, is anyone's guess," said Aziz Huq of the University of Chicago Law School.
Much depends on what the White House decides to do.
Huq , who plans to file a an amicus brief in support of the challengers, says that there could be an extension of the ban, or a new order altogether, or even some kind of official statement with uncertain legal effect.
"It is likely that the President or Department of Homeland Security will issue a new order with new substantive limits or conditions that might include other nations," said Marty Lederman, a professor at Georgetown Law.
"Alternatively, I can imagine the government coming in and saying, 'We are almost done, but we haven't gotten complete information so we need to extend this ban."
Trump on Friday seemed to indicate a desire to keep the ban in place or even extend it. Responding to the terror attack on the London Underground, the President tweeted in support of the ban.
"The travel ban into the United States should be far larger, tougher and more specific-but stupidly, that would not be politically correct!" the President wrote.
Either way, Lederman says, the justices might be inclined to remand the case to the lower courts based on new facts or circumstances.
Jonathan Turley of the George Washington University Law School does not support the travel ban but believes that prior cases favor the administration. But he too thinks the Court may not reach the merits.
He believes one option would include "the issuance of a new order that would also moot the existing orders if the conditions and possibly covered countries changed."
Trump's tweets notwithstanding, administration officials have not discussed specifics of their future plans.
At a recent conference, acting Customs and Border Protection Deputy Commissioner Ronald Vitiello said "we are in the process of action planning about each of the opportunities that the US government has to interview and/or vet potential inbound travelers."
That could include "looking at things like social media, looking at things like smart phones, those kinds of windows, if you will, into people's backgrounds and their activity," he said.
What about scathing lower court opinions
Should the Supreme Court find the travel ban case to be moot, one thing challengers to the case don't want is for lower court opinions that ripped apart the President's legal justifications for the ban to be wiped off the books.
Administration lawyers have already argued that if the court -- for any reason -- finds the case to be moot, lower court opinions should be vacated.
Some believe that the justices anticipated all along that a mootness issue might arise.
For instance, on June 26, when the court issued its order allowing the ban to go partly into effect and saying it will hear the merits of the case, it added this line: "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" days.