9th Circuit Travel Ban Ruling Could Guide Supreme Court Compromise

WASHINGTON - June 12, 2017 - PRLog -- The 9th Circuit U.S. Court of Appeals has ruled against the two major contested portions of President Donald Trump's travel order, and allowed the stays on those portions to remain in effect, but it has lifted the stay preventing the administration for doing the very studies the temporary ban was designed to permit.

        This appears to be exactly the compromise resolution which public interest law professor John Banzhaf had publicly predicted the U.S. Supreme Court might adopt, and one which it might still adopt.

        Indeed, the fact that the 9th Circuit reached this resolution might make it somewhat easier for the Court to follow this path, especially since its other two major options - either granting or denying the government's request to remove the stays - might either be completely ineffective, or alternatively award the government a complete victory without even hearing oral arguments.  Here's why.

        If the Court promptly removes the stays, as the government has requested, and permits the order to go into effect, it may be only a Pyrrhic victory.  Section 2(c) of the Order states "I therefore direct that the entry into the United States of nationals of those six [majority Muslim] countries be suspended for 90 days from the effective date of this order . . . "  [not the date it first in fact becomes effective].

        Similarly, Section 6(a) provides that "the Secretary of State shall suspend travel of refugees into the United States under the USRAP, and the Secretary of Homeland Security shall suspend decisions on applications for refugee status, for 120 days after the effective date of this order . . ." - again mandating that the order would go into effect on "the effective date of this order" [not the date it first in fact becomes effective], but this time for a slight longer period of 120 rather than 90 days.

        Finally, Section 14 of the second order clearly states: "Effective Date.  This order is effective at 12:01 a.m., eastern daylight time on March 16, 2017."

        If so, the so-called Muslim ban would become effective for only a day or two in June, even if the Supreme Court lifted the stays on the same day responsive pleadings were filed, and the refugee portion would be effective only until the middle of July.

        Naturally this interpretation - that the time periods specified in the second travel order begin on March 16th - is not accepted by some experts, but the government seemingly agrees.  In its just-filed request for a stay, the government says that "Section 2(c)'s 90-day suspension expires in early June."

        On the other hand, if the Court removes the stays, and it is determined that the ban goes into effect on the day the stay is lifted and the ban then in fact become "effective," both major portions of the executive order will expire 90 and 120 days later respectively, well before the Court would ordinarily hear arguments and decide the merits of the case.

        Therefore whether or not to grant the request for cert., which would ordinarily provide for oral argument in the late fall, might seemingly become irrelevant - although the Court might possibly take the extraordinary step of scheduling oral arguments during the summer.

        Unfortunately, it is not at all clear that the Supreme Court, if it does lift the stays, will decide this thorny issue - whether the "effective date" is in March or in June - at this time.  Some uncertainty would therefore remain, perhaps to be resolved in the first instance by lower court.

        Thus a decision to remove the stays would seemingly give the government a complete victory without any oral arguments, and probably make any further consideration of the order, as requested by the government's filing a petition for cert., moot.

        Moreover, given the very significant delays - some caused by the government itself - since the issuance of the first 90 and 120 day order on January 27th, it's hard to argue that the national security will suffer serious harm - much less irreparable injury - unless the ban is reinstated this month as Trump seeks.

        Banzhaf suggests that there might, however, be a compromise which the Court could consider as a way around this uncertainty and seeming conundrum.

        A portion of the order, to which there seems to be little opposition, and therefore perhaps  never should have been enjoined, is the one simply directing government agencies to evaluate existing vetting procedures, review the Refugee Program, and enhance cooperation with other countries.

        The government has taken the position that even these largely benign portions of the order were stayed by federal Judge Derrick Watson in Hawaii (and still remain in effect), and therefore says that no further progress regarding evaluation and review has in fact been made while the stay was in effect.

        So one alternative the Supreme Court might entertain would be overturning the stay to the extent that it applies to this largely unobjectionable portion of the order, but permitting the rest - regarding the six countries and the refugee program - to remain in effect while this agency review now occurs.

        Since the stated original purpose of the temporary ban was to give the government time to do these very studies, and then put into effect a more effective permanent vetting and refugee-review program, such an action by the Court would give the government more than 90 days to complete the work, and perhaps adopt a new final plan.

        Indeed, suggests Banzhaf, since the very purpose of the bans was to simply put a temporary halt while better vetting procedures could be developed, such procedures quite likely would be in place by the time the Court meets in October.

http://banzhaf.net/  jbanzhaf3ATgmail.com  @profbanzhaf