On Monday, the last day of the term, the Supreme Court granted cert on the travel ban cases and partially granted the government’s petition for a stay, meaning that portions of the travel ban will go into effect. The court issued a per curium opinion explaining its decision (while avoiding the substantive issues). Gorsuch, Thomas and Alito partially concurred (they wanted a full stay). That cert was granted was not surprising, but certain aspects of the substance and breakdown of the court’s opinion were telling.
The primary takeaway is that the scope of the stay closely tracks the plaintiffs’ theory of the case on the constitutional issues while also suggesting that the court is not inclined to find in the plaintiffs’ favor on the statutory issues. In terms of the stay, the Court allowed the government to bar those individuals with no “bona fide” connections to the United States, but did not permit the barring of those with said connections. This is interesting because it mirrors Plaintiffs’ constitutional arguments and suggests that the Court will find in Plaintiffs’ favor on the Mandel/Din test that has been the focus of much of the briefing by the parties.
As explained before, the two main substantive issues are that 1) the ban is invalid statutorily, in its entirety, and 2) that it is invalid constitutionally, for those with connections to the United States. The Fourth Circuit relied on the constitutional claim while the Ninth Circuit relied only on the statutory issue, ruling that Trump simply lacked the authority to issue the travel ban. Such a statutory ruling would necessarily invalidate the entire travel ban. I had suggested that the statutory issue may be an attractive option for the court since it would avoid ruling on the constitutional issues.
But, from the looks of it, I am probably wrong, and the Court seems destined to rule on the constitutional issues, on Plaintiffs’ terms. Although the government argued that the courts did not even have the power to review the ban, ultimately most observers agreed that the constitutional case would ultimately come down to a test set forth in two cases, Mandel and Din, which I have described before. Notably, however, because the Supreme Court has repeatedly ruled that non-resident, un-admitted aliens possess no constitutional rights themselves, only those in the United States with connections to the aliens would have standing to sue. When such connections do exist, the court evaluates the claim by determining whether there is a “facially legitimate and bona fide reason” for the ban. The plaintiffs have argued that the government’s reason was not bona fide because it was actually motivated by anti-Muslim prejudice; obviously the government disagreed, and the key issue in this case is probably whether the government can prove their bona fide reason.
That gets us back to the scope of the stay. The Court declined to continue the injunction against the ban entirely, which it probably would have done had it thought that the statutory argument had merit. Instead, the Court allowed in those with connections to the U.S.; in other words, those who could win under the Mandel/Din test are protected, while those unprotected by such a test are similarly unprotected by the injunction.
A fight squarely on the “bona fide” requirement is not what the government wants at all. In its initial arguments on the original EO, the government bizarrely argued that the courts do not have the authority to review the travel ban at all, and then the next round argued that the travel ban was valid because it was authorized under statute, conveniently ignoring that the constitution trumps (sorry) statutes. Discussing the bona fides of the government’s reasoning opens it up to a discussion of Trump’s public statements. The fact that the Court evaluated the stay petition, implemented it partially, yet kept the injunction in place as to this aspect does not bode well for the government.
It bears noting that Justices Thomas, Alito and Gorsuch dissented to that portion of the ruling, believing that the entire lower court injunction should be stayed, and that thus the entire travel ban should be put into effect. At this point, you have to assume that the government already has three votes going into oral argument.
Finally, the Court also ordered briefing on whether the travel ban litigation became moot on June 14, when the travel ban technically expired. This mootness issue was raised by the State of Hawaii at the Supreme Court and touches on a bigger problem for the government: the stated purpose of the ban was to provide the government time to conduct a review, and it has had – and will have had – plenty of time to conduct a review. Thus, by the time the case is argued, why is the ban even necessary at that point? As I (and many others) wrote a couple weeks ago, the DOJ has put itself in a pickle here, and the mootness issue suggests that the court is cognizant of that fact. The Court even noted in it opinion that the government did not ask for expedited argument. The government may have a hard time arguing that the ban has any purpose being applied prospectively.
Further, the Court may see this as a way to ultimately give both sides what they want. After all, argument will be four months from now, longer than the actual ban itself. So, over the summer, the government will effectively get its travel ban, for those with no connections to the United States. Then, at that point, the court would presumably be saying that the travel ban is no longer in effect and the lower court rulings prior to June 14 would remain good law.
Look, obviously, the ultimate ruling on the merits will not automatically mirror the scope of the stay, and the addition of a question presented does not guarantee a particular answer to that question. So, take all of this with a giant grain of salt (Maldon or pink Himalayan, both known for their size, are probably the way to go here). But, both of my observations above – about the scope of the stay and the addition of the mootness question – suggest that the court is trying to forge a middle ground.