Is The Supreme Court Immigration Appeal A Case Of Planned Obsolescence?

1908_Ford_Model_Tdonald_trump_president-elect_portrait_croppedThe 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.

220px-File-Official_roberts_CJ_croppedIn 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

40 thoughts on “Is The Supreme Court Immigration Appeal A Case Of Planned Obsolescence?”

  1. I think Professor Turley and many others missed a crucial point. The 90/120 days can be extended under the EO should the Executive see a need to do so.
    Kicking it down the road until October is no guarantee that the matter will not present itself to the Court at that time.
    Take a deep breath JT and try not to run upfield before you catch the ball.

    1. David Benson – the NYT will be obsolete in 10 years, what do we care what their opinion is?

      1. Those who do not have closed minds welcome a diversity of opinion.

        1. Imposed diversity – isn’t that called communist dictatorship.

          Can we end affirmative action now?

          Let freedom ring!

          The American Founders established freedom and free enterprise.

          Diworsity is optional under the rights and freedoms of the Constitution.

          Charity is constitutional voluntary redistribution.

          You don’t really care about open minds, you want open bank accounts.

          The bottom line is the bottom line – your folks want Other People’s Money (OPM).

          What you promote is diworsity of OPM.


    Newt Gingrich –

    Compel Obama to testify before Congress.

    “There’s no question that Congress should call the former president in to testify under oath to explain what he was doing and why he was doing it.”

    “There’s no question that they should build the case from the ground up. Who was doing the investigating? Who was reporting to the president? Who did it go through? What were the meetings like when they decided not to pursue it? I mean, talk about an extraordinary failure of national security.”

  3. Ben Franklin, 1789, we gave you “a republic, if you can keep it.”

    Voters impeach the executive and legislative branches through elections.

    Congress must impeach the Imperial Judiciary for corruption, insurrection

    and treason when it is in “overreach” of its sole charge to assure that

    actions comport with law and the Constitution.

    The judicial branch has no authority to legislate, modify legislation, amend

    or act politically.

    The judicial branch must remand legislation to Congress for “interpretation.”

    All power resides with the People as exercised by their representatives.

    Ben Franklin, 2017, we gave you “a republic, if you can

    take it back from the Imperial Judiciary.”

  4. What’s so claimed it’s fine or not but one thing is sure our freedom loving NATION not only suffered but all times its ‘AMAZINGLY ‘ suffering and the Leadership at White House as well as at the both Houses of Congress knew nothing what’s goingon on our own country’s soil. What your kind goodself going to make JUDGMENT on what I Claimings. God bless America. Shahabuddin Bhojani.


    The “planned obsolescence” of Gen. Michael Flynn was effected for Flynn’s support of Robyn Gritz.

    “According to this report from Circa, the FBI’s Andrew McCabe also had an ax to grind with Flynn. A few years ago, Robyn Gritz, a supervisory special agent, filed a discrimination/retaliation claim against the FBI. Flynn supported Gritz’s claim. According to Circa, he wrote a letter of support in 2014 on his official Pentagon stationary, backed her in a 2015 public interview, and offered to testify on her behalf. (The FBI opposed allowing Flynn to testify. As I read Circa’s story, it appears that he did not testify).

    McCabe was implicated in the retaliation part of the case. Circa says he admitted that the FBI opened an internal investigation into Gritz’s personal conduct after learning that the agent had filed or intended to file a sex discrimination complaint against her supervisors. McCabe’s involvement was such that he had to submit a sworn statement to investigators.”

    Acting FBI Director Andrew McCabe’s wife, Jill McCabe, received $675,000 from Virginia Gov. Terry McAuliffe and the Democratic Party, which is heavily influenced by McAuliffe.

  6. A unanimous decision by the supreme court on anything is unusual. 5-4 decisions are far more common. This might lead one to believe that the Constitution is ambiguous, confusing, or indecipherable except to a few elite who have been schooled in the complexities of the law. But even they cannot usually agree on what a given law means
    A law which states “$10.00 fine for spitting on the sidewalk” is likely to result in a discussion of just what a side walk consists of, or did the defendant actually spit on it. Practical considerations are not on the menu; abstract philosophical considerations are.
    The court, in rendering this unanimous decision, couldn’t leave it at that. That would have been far too simple. Instead, they chose to make exceptions. In so doing they re-wrote the law and created a new one which is probably unenforceable. Even more absurd is the fact that, say, a president such as George W. Bush or Barack Obama is free to enforce that law or ignore it…out of practical considerations or political convenience. Very rarely are they challenged in court.
    While we are discussing absurdities, George W. Bush unquestionably violated international law, treaties, the Geneva Conventions and principles clearly laid down during the Nuremberg Trials when he attacked Iraq. Barack Obama, a Constitutional lawyer and champion of a rule of law, enabled this war crime by choosing to ignore it—he didn’t want to “look back”—, and he made it virtually impossible for anyone else in this country to prosecute it.
    A rule of law is necessary for civilization to exist. Just maybe, one day we’ll get around to having one.

    ” A countryman between two lawyers is like a fish between two cats.”

    ____________Benjamin Franklin

  7. Ah the shrill voice of the brother extremist ideology to the progressive seculars. REJECTED. We tossed their kind out in 1945.

  8. I expect CNN to now report, using one anonymous source, a link between SCOTUS and Putin.

  9. The shrill voice and clenched fist of the other extremist left faction? How is it illegal?it’s a continuation of the last use of the War Powers Act which President Bush complied with, Obama followed and now you want to bitch about it. Or is it bitching just for the sake of bitching? Not sorry to reject your unsubtantiated personal opinion. Have you heard anyone in Congress object until now? Name them. They all gave tacit approval by not objecting in large numbers and got re-elected in equally large numbers.

  10. Work around. Fly into Canada, then cross the border into the U.S. with fake ID. Problem solved.

  11. I see our resident neo Nazi has not leift anyone out but then as a devotee of the brother to Internatinal Socialism these National Sociailsts have one their main points in common. Anti Amerian, Anti Constitutinalist and pro foreign ideology. Seig me No Heils Kamerad Patriot to Marxist Leninist Adolfism Now you might try North Korea. There is no room for your kind who even more than the extremest secular regressives have rejected OUR Constitutional Republic. in favor of totalitarian autocracys. You may consider this not an ad hominem attack on you personally but a full scale rejection and objection to using the word patriotism unless you are speaking of another country in a time gone by as do the seculars one loving the no longer existing USSR and the other Nazi Germany. Take your pick, buy a ticket, and take your rejected idiocracy with you

  12. The Court’s ruling was more than a dodge. SCOTUS instructed the administration how to do the order correctly; told opponents of the order not to bother challenging a correctly framed order it; and gave lower courts a framework within which to judge future travel bans. All in all, a good day’s work AND a commendable exercise in judicial restraint.

    1. Ditto on that well thought out comment. From a moderate centrist Constitutionalist viewpoint it’s exactly what the court should be doing. So that makes how many days since January 20th to get something through the entire court system? Talk about an accomplishment the result went a long way to updating and modernizing the position of the country on and left room for considered and careful thinking about any further tweaking.

  13. What a great dodge by the Supreme Court. In October, after, ‘bona fide relationships’, has become a new twitter phrase with and without spelling mistakes, the conditions will have changed and the Supreme Court can think up another exit strategy. Now for an endless stream of inventive, ‘bona fide relationships’, and their contradicting arguments. We need more judges.

    1. Did Bacon switch sides and reject the left or is it a dodge to alow his ruling class time to escape and retrench elsewhere? Certainly is not true to form. Who knows?

      1. I reject BS whether it comes from the right or the left, or from others on this blog. If you read the Supreme Court you will see they created a filter, ‘bona fide relationships’. Now, it will be up to the ensuing circus to determine just what a ‘bona fide relationship’ is. This is a flood gate opening for lawyers and lots of fun stuff. This really has nothing to do with left or right, just a comment on the way legal eagles think. You missed it.

    1. The travel ban is back on in theory, but in practice it will block only a small sliver of the people who seek to come to the US from those countries. Most of those will be blocked are the war refugees from Iraq and Syria.

      1. By modernizing the countries approach to immigration instead of relying on having to cherry pick from a hodge podge of secular regressive remnants. By establishing principles such as no one from anywhere has the right to emigrate with this country as an objective without our permission, under our rules and subject themselves to our requirements. “Most of those’ no longer exist having been genocided by the Obama policy or ratio of 50,000 to 50 – the latter including Yazidi, Bahai, Christian, and Jewish – which was about as racist and bigoted as one could get.

    2. It is a win for America. Trump will be in Mar Lago when the terrorists blow up buildings in Washington DC. The Justices on the Supreme Court might dodge a bomb or bullet.

      1. Jack Ruby – and as usual the FBI will not be doing their jobs.

      2. Might but I reckon DC has more protection and that will increase now that the still ongoing extreme vetting has been set aside for later consideration – if at all. Now the country hs to review it’s internal defense posture. as those seeds were sown by Obama and the 4th/9th Circuit Courts.

    3. Your blind bias is showing. This is a ‘TBD’ if ever there was one.

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