Congress, Constitutional Law, International, Politics, Supreme Court

Trump Travel Ban Expires Before Supreme Court Argument As The Administration Prepares New Order

Supreme CourtWhile 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.

41 thoughts on “Trump Travel Ban Expires Before Supreme Court Argument As The Administration Prepares New Order”

  1. Pingback: Supreme Court Reinstates The Trump Travel Ban In Full Depending Appeal |

    1. The shooter is christian and a former member of the church .He is not connected to Islam and has been here for more than twenty years.

    1. When your’e not loading your mind with crap from Beck, Drudge, Fox News, and the Alt-right, do you sit around and blame Obama and HRC for the crap you sit in?

    2. Yawn! Here we go again. The anti-Semitic “patriot” repeatedly accuses Israel(and of course the Jewish conspiracy) as being responsible for all the troubles of the world! Hopefully the wise people who visit this website can see through patriot’s one issue garbage. “Patriot” has no credibility!

  6. Professor Turley has not blogged on the greatest political crime since Watergate: Obama’s abuse of “intel” in a presidential election and a massive “unmasking” effort just before inauguration .

      1. That’s because fantasies crafted to be spewed to the gullible and naive by paranoid basement dwellers who are off their meds aren’t anything that rational people waste their time on.
        But in your case, quick! Alex Jones has pics of Hillary mating with Putin’s hairdresser!

        This is to autie and crazy George

        2. whatever Mark M -not a fantasy. The Awan bros are real and have benefited greatly from our tax dollars. Putting our national security at risk. DSW should be in jail along with hRC.

      2. Oops! How about that?

        My apologies, Professor Turley.

        And sorry, ladies. I was wrong.

        Professor Turley did blog on the greatest political crime since Watergate with more to come.

        To wit,

        – Report: Obama Administration Carried Out Massive and Unconstitutional Surveillance Programs

        May 26, 2017

        President_Barack_ObamaWith the steady stream of controversies swirling around the White House, there has been little attention given a highly disturbing report that the Obama Administration engaged in previously undisclosed and violations of the Fourth Amendment. Just a few days from the 2016 election, the Foreign Intelligence Surveillance Court (FISA) reportedly raised a highly unusual alarm over the creation of “a very serious Fourth Amendment issue” by possibly unconstitutional surveillance conducted under President Barack Obama. If true, this should be given equal attention to the other stories crowding our front pages and cable coverage. The Obama Administration has a well-documented history of abuse of surveillance and stands as one of the most antagonistic administrations toward privacy in our history. Indeed, if true, many of the former Obama officials currently testifying against the Trump Administration were responsible for a far broader scope of abusive surveillance programs.

    2. What color is the world you live in? Maybe take off the horse blinders and take a look around. Is that to much to ask?

  7. While I support the ban, I fear it’s a feel good measure. Let’s face it. If I’m a jihadist and I am h*** bent on getting into the USA and engaging in terrorism, an administrative ban isn’t going to stop me. I’ll simply obtain travel documents from a country not listed on the ban. Then I’ll travel as a Chadian, Italian, or whatever.

    1. OK, here it is. Love the First Amendment which gives CV and me the right to speak freely without government censorship. Hate idiots who think that boycotting has anything to do with First Amendment rights.

      1. The POTUS said to fire players if they didn’t stand, is that not censorship from government itself? Second, did you not read about the war of independence last year in school?

    2. Americans enjoy free speech and choices in consumption. Players can “express” themselves as free speech. Owners can order them not to. Consumers can boycott the product of their choice. It’s all good.

  9. One thing he does is move fast and move smart. Doing political judo on the 9th and it’s Rogue Hawaii judge he got it to the right court, the ultimate court in record shattering time and then sat back and said….you make the rules we’ll implement them as judicially approved. It leaves the do nothings in congress and the do nothings of the left with exactlly nothing to do but comply. Hawaii which only took 3 immigrants this year and then complained the loudest is in for a big surprise.

  10. Someone has 11,000 stolen Syrian passports. The Trump administration has said this next one will be more structured.

    1. The shadow government has aborted 40 million actual Americans since Roe v Wade, placed the actual American birthrate in a deep “death spiral” and imported the increasing, all-inclusive American population. In 100 years, there won’t be an actual American left in America. Obama is still “fundamentally transforming” Americans out of America. The shadow government must have massive and persistent population imports. Even the New “Frankenstein” America will cease to exist if the importation of its diworse population is impeded even fractionally.

      Do you suppose old “Crazy Abe” Lincoln comprehended the destruction he engendered and perpetuated on America with his nullification of the Constitution, mass-murder-of-Americans Civil War and “diworsification” of the American population; I mean before someone changed his mind?

      Good night, America.

      1. “The shadow government has aborted 40 million actual Americans since Roe v Wade, . . .”

        You’re right! I’ve seen the roundups of pregnant women, herded into abortion clinics by the shadow government — sitting in their surveillance vans with the blue-green glow — waiting to drag a woman into the van and force an abortion — disgusting!

        I have it on good authority, though, that many weren’t ‘actual Americans’. Some were immigrants. Still though, I get your point.

        Out of curiosity, why do you quote Hamilton so much? It seems his perspective would run counter to yours?

        I think you quote in a small bubble, ignorant of the larger arguments that your precious quotes were addressing in their day — but hey, if it sounds good, quote it!!

  12. The new Order should be titled: Ban All- Not in Tandem- Keep your Friggin Muslim Beliefs in Panda.

      1. But Ken . . . curry is delicious and The Republic of India is one of our allies in the war on terror.

        Is there a foobaw player named Curry?

          1. Where was the outrage from the right and Trump when Tom Brady refused to go to the White House?

            2. That’s a lie, rotten FishWings. Brady chose to spend time with her very sick mother. I call it having one’s priorities right.

      2. Don’t ban curry. I love curry; not too hot and with a real good English Chutney. This is just more of our idiot President’s ethno-hate routine. Just because some Indians do atrocious things, doesn’t mean you can’t enjoy a good curry.

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