The victory of the Trump Administration in securing the lifting of much of the injunction on the immigration order consumed much of the analysis yesterday. The Court voted unanimously to lift the injunction for every one except those with “bona fide relationships” in the United States. The latter exception was a bit incongruous with the overall deference to the Executive Branch and led three justices — Clarence Thomas, Samuel Alito, and Neil Gorsuch — to dissent. They would have lifted the ban without exceptions. What was most interesting however was what was not in the order: a hearing date for July. The reason is that it was not requested by the Trump Administration. Given the 90 days expiration of the order, that leads to the question of whether this appeal is a case of “planned obsolescence.”
Buried in the order was the following line after the Court set the oral hearing for the start of the October session: “(The Government has not requested that we expedite consideration of the merits to a greater extent.)” So the Administration asked for expedition but did not push for a July argument, which would not be unprecedented. Instead, the Court set oral argument for the start of the October session. Why? If this is a matter of national security danger, one would expect at least a request for a July argument.
The question becomes more intriguing when you do the math. The order is set to expire in 90 days from its execution. Since the running date would start three days after the Supreme Court decision, the expiration date would occur on September 27th, 2017. That is just five days before the start of the October term. That would mean that the matter could be moot.
The Trump Administration could then issue a new order or make the ban on entry from some or all of the six countries permanent (absent changes in vetting capabilities). That would then be the subject of new challenges. The new challenges however would likely have a new factual record from the Administration detailing its efforts to establish adequate vetting procedures and any failure of the six countries to supply necessary and reliable information.
In the meantime, the Administration will have to address any challenges over its interpretation of “bona fide relationships.” Some are easy like familiar, academic, or employment relationships, but how about relationships with immigration groups or church sponsors? That is the basis for the three justices dissenting to the exception. They raise a valid question as to basis of the Court deferring to the government but then coming up with this type of unilateral and only partially defined exception. It was interesting to see Chief Justice John Roberts join the liberals in supporting such an exception. Roberts has repeatedly shown an inclination to moderate the impact of decision. He is the ultimate institutionalist and tend to look for moderating elements. In addition to his vote on the denial of the birth certificate appeal (under Obergefell), his position on the immigration order could further establish his role as a swing vote after any departure by Justice Anthony Kennedy.
In the end, the Court (or even the Administration itself) could have guaranteed the planned obsolescence of the immigration order. Just as former General Motors head Alfred P. Sloan Jr. saw annual design changes as useful in prompting buyers to seek new models, the expiration of the immigration order will encourage the Administration to issue a “new and improved” model for immigration. Just as the second version significantly improved the original order, any subsequent order could be iron-plated by a record of findings for the Administration. Alternatively, the Administration could find that vetting procedures are now sufficient in light of its efforts over the course of 90 days.
Thus, the argument in October may never happen and the Administration can take the order lifting the injunction as sufficient vindication to move beyond this controversy.
Here is the immigration order: Order