Travel ban issue will be moot before SCOTUS date — here’s why

President Donald Trump filed an appeal with the Supreme Court of adverse decisions in two circuit courts on his March 6 executive order, “Protecting the Nation From Foreign Terrorist Entry Into the United States.” 

He also petitioned the court for a temporary stay of injunctions issued by the circuit courts that had restricted the implementation of the executive order. In a decision on Monday, the court granted the petition in part, staying the injunctions to the extent that they apply to foreign nationals abroad who have no connection to the United States. The stays are in effect only until the case is decided on its merits.

Pertinent precedent

{mosads}In Kleindienst v. Mandel, the court held that Congress has plenary power to establish policies for the exclusion of aliens from entering the United States, which it can delegate conditionally to the executive branch. When the executive branch has used such authority to exclude aliens “on the basis of a facially legitimate and bona fide reason,” the courts will not look behind the exercise of that discretion.

The absolute nature of the delegation at issue in this case is reflected in the language of the statutory provision that conferred it on the president in Section 212(f) of the Immigration and Nationality Act when it was enacted in 1952: 

“Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants…”

Are the travel ban issues moot?

The respondents to this appeal argue that the case is moot because the travel ban has expired. The executive order specifies that the entry of nationals from the six travel ban countries is suspended for 90 days from the effective date of the order, which was March 16. The travel-ban therefore was scheduled to expire on June 14. 

In a memorandum issued on June 14, Trump declared that the effective date of enjoined provisions in the travel ban order would “be the date and time at which the referenced injunctions are lifted or stayed with respect to that provision.” The court directed the parties to address this issue when the case is argued on its merits in October. 

Another mootness-issue

The travel ban is just the tip of the iceberg. It was just intended to prohibit immigration from those countries until a new vetting system could be implemented.

Section 2 of the executive order directs the secretary of homeland security, in consultation with the secretary of state and the director of national intelligence, to conduct a worldwide review to identify what additional information is needed from each foreign country to determine whether admitting their nationals to the United States would pose a security or public-safety threat. 

The secretary must submit a report to Trump on this review within 20 days of the effective date of the executive order. The secretary also must ask all foreign governments that do not supply this information already to begin providing it within 50 days. Trump will issue a new executive order that will restrict immigration from the countries that refuse to cooperate.

The injunctions prohibited the implementation of these provisions along with the ones that relate to the travel ban. This technical error was not corrected until June 12, when the Ninth Circuit Court of Appeals  issued a decision on the executive order in which it vacated the portions of the injunction that relate to the government doing an internal review of its vetting procedures. 

The new vetting system is expected to be implemented in less than 90 days, which means that the reason for continuing the 90-day suspension of the travel ban countries will cease to exist in mid-September.  

The six travel-ban countries will be subject to the new ban if their governments refuse to cooperate with the new vetting system, or they will not be subject to it if their governments agree to cooperate. In either case, they will no longer be subject to the 90-day travel ban. This will moot the travel ban issues before the court reconvenes to hear arguments on the merits of the case.

The new ban  

The original travel ban order was hastily issued one week after Trump’s inauguration without an interagency review. The new one will be based on a worldwide review and interagency input. 

According to DHS Secretary John Kelley, in addition to the six countries on the travel ban list, 13 or 14 other countries also have very questionable vetting procedures and not all of them are predominantly Muslim countries. 

This ban will depend entirely on a country’s willingness to cooperate with the new vetting system, and it will not apply categorically to every alien from a country with an uncooperative government. It only will apply to appropriate categories of aliens from those countries. 

Therefore, it should be easier to defend if it is challenged in court.  

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.

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