Below is my column in The Hill Newspaper on the termination of the second travel ban and issuance of the new order by the Trump Administration. As discussed in the column, the Supreme Court went ahead and removed the immigration cases from the schedule for oral argument while agreeing with the Administration to order briefings on whether the cases are now moot. It is hard to see how the cases are not moot in whole or substantial part. The Court tends to take off ramps to avoid constitutional decisions, particularly in the area of the separation of powers. It will hard not to take this obvious off ramp.
Soldiers often say it is unlucky to be “third on a match.” It was common superstition that first arose in the Crimean War and later became popular in World War I. The theory was that it often took a sniper time to properly sight a target and, for that reason, the third soldier to take a light off a match was often the one shot. With the issuance of a third travel order by the Trump administration, the challengers may find themselves in the same precarious position of being a match short and out of time. Advocates have already declared the new order as the same “Muslim ban” and promised a third legal round of challenges.
However, with each successive travel order, the chances of the challengers have diminished and the aim of the administration has dramatically improved. They may find that, in both war and law, third on a match is truly bad luck. On Oct. 10, the Supreme Court is scheduled to hear arguments on the second travel ban. It is hard to see how much of the case survived after Sept. 24, the date that the travel ban expired, given this new and different order. The court will now have to decide how to respond to an order with a new scope and new procedures. The Justice Department has asked for such briefing on whether the case is now moot.
From the start, it appears that the administration was always planning to take the shot on the third round before the court. The administration conspicuously declined to ask for a hearing back in June and instead accepted an oral argument date two weeks after the 90-day expiration of the second order. Nevertheless, the Supreme Court ruled initially, if temporarily, against the lower court orders. It lifted the injunctions imposed by the lower courts and allowed the travel order to be implemented, with an exemption of those with “any bona fide relationship with a person or entity in the United States.” When the 9th Circuit later tried to again bar aspects of the second order impacting grandparents and refugee organizations, the Supreme Court quickly lifted that injunction as well.
That was the second light. Various advocates are already reaching for the third light. Johnathan Smith, legal director of the advocacy group Muslim Advocates, dismissed the new order as the “same Muslim ban” and insisted that the order makes only “cosmetic adjustments to the Muslim ban.” He predicted that the administration has “failed again.” However, that only overestimates the chances of the challengers before the court on the second order but ignores the obvious changes in the third order.
The most damaging arguments made in the first two rounds of litigation were based on President Trump’s intemperate campaign statements and later presidential comments on banning Muslims. Some of us questioned the heavy reliance on such statements as constitutional matter. Indeed, in a rare published dissent to the denial of a rehearing, five appellate judges on the 9th Circuit strongly rejected the challenge. Moreover, each new generation of the order made these statements less and less material.
While Trump can certainly undermine his lawyers with new tweets and comments, the challengers may find that these statements have the feel of Golden Oldies with a smaller and smaller judicial audience. Moreover, the administration has long argued that the first and second orders were not Muslim bans, and that case is even stronger on the third round. Now it has dropped two Muslim countries, Iraq and Sudan, while adding Chad based on changed circumstances. It also added North Korea and Venezuela.
More importantly, the record put forward by the new administration in January was thin. This record is ample. The Homeland Security Department spent months working to develop a new security baseline and studied the need for such new requirements as electronic passports with biometric information as well as integration of criminal records. Every country, not just those listed in the original order, was ordered to meet these benchmarks in 50 days and virtually all did so, according to the administration.
The administration has now had months to study vetting procedures and problems in various countries. Multiple agencies reached consensus on the limitations placed on the new list of eight countries. Sudan was found to have responded and improved their vetting and record procedures. The other countries face different restrictions tailored to the particular risks found in their procedures. Somalia will face added scrutiny, but its citizens can obtain visas.
Venezuela will have limits placed on those associated with the country’s leadership and their families. Iranian citizens will continue to be ineligible for tourism and business visas, but they will remain eligible for student and cultural exchange visas if they undergo additional scrutiny. Various judges had already expressed reluctance to second-guess the administration on such issues, and that reluctance will likely only be magnified by the new record from the administration.
Some of the prior decisions focused on the failure of the administration to properly prepare immigrants and agencies for the change in entry procedures. This order contains restrictions that will be phased in gradually and will not apply to anyone with a current valid visa. The first order failed to exempt visa holders in an astonishing oversight in drafting such a major executive order. More importantly, efforts to force greater integration of criminal and terrorist records are objectively reasonable.
The new technology of biometric identification is already being used in many countries. Courts routinely decline to superimpose their views on such policies and afford agencies like Homeland Security considerable deference on the choices that they make in areas like immigration. This ban is indefinite for the countries as opposed to a 90-day suspension of entry. However, that ban can be lifted if the countries meet the procedures laid down by the order.
Now it is time for the third light, but it is hardly risk free. For immigration advocates, the next round could create lasting and damaging precedent. The administration has an improved position and, in my view, it is likely to hit this target with greater ease and effect. In that sense, the third round could prove as much a charm for the administration as bad luck for the challengers.