Trump Amends Travel Ban To Avoid Date/Mootness Problem

WASHINGTON - June 14, 2017 - PRLog -- The Trump administration has amended its travel ban, now before the Supreme Court, to avoid a timing problem highlighted by a law professor more than a week ago.

        Public interest law professor had noted that, if the Supreme Court  promptly removed the stay just after the original filing date for briefs, as the government had originally requested, and permitted the order to go into effect then, it might only be a Pyrrhic victory.

        Section 2(c) of the Order states that "the entry into the United States . . .  be suspended for 90 days from the effective date of this order" [not the date it becomes effective], and Section 14 of the Order further clearly defines that "effective date" as 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.

        Naturally this interpretation is not accepted by some experts, but the government seemingly agreed.  In its stay request, the government stated "Section 2(c)'s 90-day suspension expires in early June."

        Now that the government has requested, and obtained, an extension of time in which to file additional briefs, removing the stay might have no consequence if the period of the ban had already expired.

        So, in attempt to avoid such a completely hollow victory, and to have the Court declare as moot their request for judicial review of the underlying issues, Trump's lawyers have amended the order.

        Under the amended version, the travel ban does not go into effect - and the 90-day and 120-day clocks do not begin running - until all stays have been lifted; a sharp departure from the government's original interpretation that the clock began running on the "effective date" of  March 16, 2017.

        All of this activity before the Court will almost certainly delay any action it might take.

        Moreover, it would further undercut the administration's argument that the country will suffer serious harm - much less irreparable injury - unless the stays are very promptly lifted.

        Moreover, because the 9th Circuit's decision, which now for the first time permits the government to do the vetting and related studies which were the reasons for the temporary bans in the first place, the Supreme Court might duck both the constitutional issues raised by the 4th Circuit, and the statutory issues raised by the 9th, and simply let the studies play out and see what happens.

        If, as a result of the studies, some permanent restrictions are then put into effect, the Court can review the permanent rules - and all the underlying complex issues - in a timely fashion, without violating the usual legal policies which counsel against deciding important constitutional issues prematurely and in the abstract, says Banzhaf.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH),
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/  jbanzhaf3ATgmail.com  @profbanzhaf