Beware Mr. President: The Supreme Court Did Not Give You a Win!!
June 26, 2017
I read the Supreme Court’s decision on the travel ban today, and all I have to say is that it is not a win for the President. I will discuss below.
What did the Court Say?
The decision to grant certiorari on the case is not a final decision, it is a decision limiting the application of the injunctions currently in place against the President’s executive order. It ruled on two issues 1) whether the states and individuals had the standing to sue to stop the ban and 2) whether the President can limit refugee admission based on national security grounds.
What will the Court Do?
The Court ruled that the injunction should stay in place for individuals, similarly situated to the Plaintiffs, who had a bona fide relationship with an individual or entity in the United States. The Court lifted the injunction when it came to individuals who do not have such connections. This reasoning also applied to refugees who may claim standing if they have such relationships. This reasoning is sure to lead to more litigation regarding the ban.
What is the Strategy Against the Ban?
I do not believe that the President should claim victory in this case. The simple reason is that this decision, in essence, gave potential standing to refugees, and gave organizations who help refugees standing to sue to further enjoin the ban.
The decision allowed refugees to claim standing if they have connections to an organization in the United States. So for example, a refugee who has gone through the background checks and has been approved for relocation to the United States might, potentially, have the standing to sue if they were denied admission to the United States. This also expands standing to the organizations themselves, who may, in essence, claim the necessary standing based on potential economic injury from the ban. Let us remember that these organizations receive government payments for the relocation of these refugees.
The decision also allows standing to family members to sue if there is a discriminatory reason for the denial of admission for their family members. Basically, the decision will expand standing to affected individuals as applied to their family members. Thus far, the ban has been challenged on facial grounds. In other words, the ban is being challenged because it is discriminatory on facial grounds, i.e. as it is read. if we move forward, the ban will also be challenged on “as applied” grounds i.e. as applied to these individuals with family members in the United States. These two grounds will surely lead to more challenges to the ban in court.
What are the possible Outcomes for the Case?
There are three possible outcomes to this case, and I believe that the Court will punt on the issue to allow a decision on the merits in the lower courts.
The first outcome might be for the Court to decide that the case is moot. The executive order itself will sunset within 90 days after the government conducts a study on the “extreme vetting” procedures for which the President advocated during the campaign. So when this case comes up for a decision before the Court, it might already be moot. However, one possible strategy against this issue is the fact that the issue might be capable of repeated in the future and evading review. This is the argument used in Roe v. Wade for example.
The Court may also remand the case to the lower court for more fact-finding and for a decision on the merits. The main issue here will be whether there are enough facts for the Court to make a decision. The main issue here is the discriminatory intent behind the executive order itself. The Court may remand the case to the lower court who are more equipped for fact-finding than the Supreme Court. The Court may keep the injunction in place until the decisions on the merits are issued.
Lastly, the Court may either uphold the injunction or remove it, allowing the ban to go into effect. This, however, will be unlikely, since the Court will essentially be giving a partial win on the merits to the Administration. I must say that the Court’s prior decisions give standing to states to challenge the President’s authority to enter such executive orders when they harm their interest.
I disagree with the President that today’s decision is an outright win for him. Stay tuned for future posts on this issue. Call us at 1-888-963-7326 to schedule a consultation with us.