Reminder: The “Travel Ban” Expires This Morning (Probably Ending the Case, At Least for Now)

By the time you read this, the heart of the so-called “travel ban” will probably be no more.

Since June 29, the Executive branch, acting pursuant to Section 2(c) of Executive Order 13,780, has prohibited the nationals of six countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen) from entering the United States unless they have a bona fide relationship with a person or entity in the United States.  Section 2(c) expires 90 days after its “effective date,” which, according to a June 14 presidential memorandum, was the morning of June 26, the date and time at which the Supreme Court partially stayed preliminary injunctions against its operation.  The entry ban, in other words, expires this morning, at approximately 10:30 a.m.  Therefore, unless and until the President acts further, nationals of the six nations who do not have a bona fide relationship with a person or entity in the United States will once more be permitted to enter the United States under the same terms and conditions as they could before June 29.  (A separate entry ban, applying to all refugees who lack such a bona fide relationship with a person or entity in the United States, expires in one month, on October 24.)

By all accounts, however, the President will soon act to impose new conditions and limitations on entry.

According to a July 12 State Department cable, the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, provided a report to the President in early July outlining what information was deemed needed from every country on earth “in order to sufficiently vet the nationals of that country in order to obtain a visa, admission at a port of entry, or other immigration benefit.”  That report “prioritize[d] country engagement based on certain risk factors,” and recommended new standards “related to (1) identity management and (2) information sharing on security and public safety threats.”  The report also included a classified list of countries preliminarily assessed as not meeting the report’s new standards, as well as a list of other countries deemed to be “at risk” of not meeting them.

On or shortly after July 12, the State Department asked virtually every government on the planet to “provide the requested information or develop a plan to do so.”  The contemplated 50-day period for consultation and communications with all those nations ended on or shortly after August 31.   According to government officials, governments the world over were told that if they failed to comply with the U.S. requests within those 50 days, their nationals would face the threat of “severe travel restrictions.”

Most countries reportedly satisfied the U.S. conditions during that period (they “added measures to improve security for passports and to better identify potential terrorist threats”), but others “either could not meet the tougher vetting standards or willfully refused to engage with the United States government.”  The nationals of the latter group of countries therefore will soon be subject to a reported “spectrum” of new conditions and limitations on their entry into the United States.  It apparently will not be one-size-fits-all:  The new rules are “tailored and specific to each country,” said Miles Taylor, counselor to the DHS secretary.

As of Friday afternoon, the government was not yet ready to announce what that “spectrum” of new rules would be, nor which countries’ nationals they will cover.  Some of the original six Muslim-majority counties presumably will  be affected, but others might not be, and the new rules reportedly will apply to some countries that were not among the original six.  According to Laura Meckler, the President has tentatively approved restrictions for the nationals of nine nations, including more than one that is not majority Muslim.

What if the President, DHS and State are not prepared to impose the new rules by this morning?  According to Chris Geidner, a White House principal deputy press secretary acknowledged that “[t]here are some contingency plans” in that case, but “he wouldn’t say what those are.”

In any event, the new rules will likely be in place by October 3, and therefore the Solicitor General presumably will explain them to the Supreme Court in the reply brief he files that day in the consolidated cases challenging the Section 2(c) entry ban.

What happens to the cases then?  I assume they will be moot, at least as to Section 2(c), because the challenged government action will simply no longer be operative and thus there will be no ongoing dispute about whether it should be enjoined.  Likewise, Section 6(b)’s cap of 50,000 refugees in Fiscal Year 2017 will be moot as of this coming Saturday, when that fiscal year ends.  (Sometime this week, the President will set a new quota for the Fiscal Year 2018 that begins October 1.  Reports are that it might be substantially lower than 50,000–that DHS has recommended 40,000 and that Stephen Miller has pushed for 15,000.)  The third challenged provision–the Section 6(a) moratorium on entry of refugees–expires on October 24, two weeks after the scheduled October 10 oral argument, and so that will soon be moot, too.

To be sure, the forthcoming new restrictions and conditions on entry might themselves be subject to legal challenge, including on the statutory question that has (properly) become the lead argument in the current cases, namely, whether 8 U.S.C. 1182(f) authorizes the President’s actions.  Perhaps it will be appropriate to raise those challenges in the existing suits, or perhaps it will be necessary to file new cases, involving new plaintiffs–that all depends on what the terms of the new rules are, who they affect, and how.  One thing is fairly certain, however:  As I wrote back in June, the new challenges will be based on a different factual record, different national security assessments, and, presumably, different restrictions affecting different (if perhaps overlapping) sets of immigrants, families and institutions.*

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*The Solicitor General argues that if the Court does conclude that the appeals are moot, “the appropriate course would be to vacate the courts of appeals’ judgments upholding the injunctions barring enforcement of Section 2(c).”  For substantially the reasons offered in Part III of Seth Waxman’s brief on behalf of FedCourts scholars, I think the more appropriate course would be not to vacate the court of appeals’ judgments.  If a party chooses to invade the legal rights of another party for only a short period of time—a period that does not allow for the full scope of appellate litigation, up to and including the Supreme Court’s disposition after full briefing and argument, absent extraordinary expedited proceedings—that party should not be entitled to have any adverse judgments vacated simply by virtue of the fact that it chose not to extend its conduct for a longer period and that the plaintiffs chose to seek only injunctive relief.

That said, I have serious doubts whether the question of vacatur will have much, if any, practical effect on any subsequent litigation in this context, especially because the federal government is not subject to nonmutual collateral estoppel and because the follow-on litigation is likely to be resolved, in the end, by en banc courts of appeals and/or the Supreme Court, such that any stare decisis impact from the past preliminary injunction proceedings will be limited, at best.  I therefore would not be surprised if the Court vacates the lower court judgments. 

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Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).