Supreme Court Ruling On Immigration Ban – Analysis


The Supreme Court has directed that responses to several requests filed by the Justice Department regarding the administration’s immigration ban be filed by June 12th, and experts seem divided on whether the Court is likely to allow the order to go into effect shortly thereafter.

But since any such action might either be completely ineffective, or alternatively award the government a complete victory without even hearing arguments, another possibility is that the justices will permit only some parts of the President’s order to become effective in June, says public interest law professor John Banzhaf, who successfully predicted earlier rulings in the complex immigration ban cases.

Such a compromise ruling which would split the difference, and leave the important constitution issues to be decided only after oral argument, and perhaps also until after the legal situation has become further clarified; a result more consistent with an important legal principles termed “ripeness.”

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If the court promptly removes the stay, as the government has requested, and permits the order to go into effect, it may 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 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 agrees. In its just-filed request for a stay, the government states “Section 2(c)’s 90-day suspension expires in early June.”

On the other hand, if the Court removes the stays, and agrees that the ban goes into effect at that time, it will expire 90 days later, well before the Court can hear arguments and decide the merits of the case – thereby giving the government a complete victory without any arguments, and making any further consideration of the order moot. Moreover, given the very significant delays – some caused by the government itself – since the issuance of the first 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.

But a portion of the original order to which there seems to be little opposition is that 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 benign portions of the order were stayed by Judge Derrick Watson in Hawaii. So one alternative the 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 to remain in effect.

Since the original purpose of the 90-day ban was to give the government time to do these very studies, and then put into effect a more effective and permanent vetting and refugee-review program, such an action would give the government more than 90 days to complete the work, and perhaps adopt a new final plan – one which would then be subject, or course, to judicial review in the fall.