While the world did not end as announced on Saturday (which has proven an incredible inconvenience for those of us having to teach next week), the Trump travel ban did end on Sunday. When the Supreme Court lifted a significant part of the injunctions imposed on the bans by lower courts, there was a surprising footnote in the short order that I discussed at the time. The Court indicated that the Trump Administration had not asked for an expedited hearing before October. That set the travel ban up for what I described as “planned obsolescence” to expire shortly before the scheduled oral argument.
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.
As discussed at the time, the answer would seem to be that the Administration was planning to issue a new travel order after the expiration (it would be smarter to wait for the passage of the 90 days to avoid arguments that the new order in any way worked in tandem with the prior order). The new order would then be based on new information, new priorities, and likely cover additional countries. That would make it even more difficult to challenge. The degree of reliance of lower courts on Trump’s campaign statements and tweets were always questionable. Replaying “Golden Trump Oldies” on a new ban is unlikely to garner as much of a judicial audience.
After the Supreme Court order lifting the injunction, the expired ban barred citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen who could not show a “credible claim of a bona fide relationship with a person or entity in the United States” from entering the U.S. The new order could add additional countries to the list and identify other vetting concerns and procedures. This would be the third generation of the travel ban and, with each generation, the expected level of agency deference increased.
The government has reportedly been refining new rules, which may include the need for electronic passports with biometric information as well as greater sharing of information on the criminal histories of passengers.
With the issuance of the new order, the Administration could support the mooting of the existing appeal. The Supreme Court has historically avoided constitutional rulings, particularly in the area of the separation of powers, when alternatives exist. This would be the ultimate exit ramp for the Court to avoid this issue and wait for expected challengers to bring the new order through the federal system.