by Michael Dorf
As I write, the White House has sent conflicting signals about how it intends to respond to Thursday night's unanimous Ninth Circuit panel ruling leaving in place Judge Robart's stay of the already infamous Executive Order 13769. It initially appeared that the Trump administration would not seek immediate review in the Supreme Court, but within hours Sean Spicer announced that all options--including Supreme Court review--remained on the table, even as the president himself indicated that he might simply sign a new executive order. What are the pros and cons of the various approaches?
(1) The government could seek en banc review in the Ninth Circuit. Even if it does not push the point, because one Ninth Circuit judge has made a sua sponte call for en banc review, the parties have until Thursday to file briefs on whether the court should take the matter up en banc. En banc review in the Ninth Circuit looks like a losing proposition for the federal government. Readers unfamiliar with the Ninth Circuit's rules may think that en banc means "full court"--which it does for most circuits, but because of its size, the Ninth Circuit hears en banc cases in panels of eleven. The Trump administration could get lucky and draw a conservative majority on the en banc panel, but given the overall composition of the Ninth Circuit, that seems unlikely. If the administration wants to have Judge Robart's order dissolved quickly, it should try to bypass en banc review in the Ninth Circuit. That would involve the next option.
(2) The odds look a little better for the Trump administration in the Supreme Court. The administration could seek an emergency stay of the district court stay from the Supreme Court, via a petition to Justice Kennedy (the Circuit Justice for the Ninth Circuit), which he would very likely refer to the full Court. The Court would then likely call for a quick response and probably either deny or grant the motion for stay without oral argument, although it could quickly schedule an oral argument. In the current eight-justice Court, a 4-4 tie would leave the Ninth Circuit ruling and thus the district court stay in place. It is hard to see any of the Democratic appointees voting to reverse the Ninth Circuit and it is relatively easy to imagine Justice Kennedy joining them to reject the government's broadest assertions of power, given his authorship of Boumedienne v. Bush and his statement in his concurrence in Kerry v. Din that a credible allegation of bad faith would enable a court to look behind a government's facial assertion of a national security interest in excluding an alien outside the United States.
The Trump administration's best hope in the SCOTUS is for some sort of compromise holding, but the issues on which the administration's arguments are strongest are problematic. Perhaps the Court could rule that Washington and Minnesota lack standing for at least some of their claims, but even if it did, that would only delay the day of reckoning. The DOJ lawyers have conceded that relatives of persons currently excluded from the U.S. have standing. So do holders of visas who are currently in the U.S. and are chilled from traveling outside the U.S. by the Executive Order. People in these categories have already sued in other courts and it would be child's play for the States of Washington and Minnesota to find a few such people in their respective states to be joined as additional plaintiffs pursuant to Federal Rule of Civil Procedure 20. A SCOTUS order partially dissolving the stay on standing grounds would be met with an almost immediate joinder motion back in Judge Robart's court, whereupon the stay would be reissued with the standing problem cured.
The other way in which the district court order is somewhat vulnerable is in its grant of nationwide relief. The Ninth Circuit concluded, as did the district court, that any narrower relief would not fully remedy the harm done to the plaintiffs, even though the scope of relief granted sweeps in some people who don't have clearly valid legal claims. That strikes me as right: A Yemeni national flying from Paris en route to Seattle or Minneapolis could enter the U.S. in New York, Detroit, Dulles, or any of a large number of airports, and to ensure her rights requires a nationwide injunction. To be sure, it is at least possible to imagine that the government could come up with narrower relief. But if the Trump administration were to win on this ground in the Supreme Court, that would simply invite district court judges around the nation to start formulating a patchwork of less-than-nationwide injunctions. The Supreme Court could well think that the attraction of Supreme Court review in this case is that whatever the limits on the ability of a single district court judge to grant nationwide relief, the power to formulate uniform national rules of law is close to the very raison d'être of the Supreme Court.
Bottom Line: A complete victory for the Trump administration in the Supreme Court seems highly unlikely, while the kinds of partial victory that it might win will either quickly lead to new defeats in the lower courts or, more likely, because for that reason the justices will find such partial reversals unattractive, are themselves unlikely.
(3) The suggestion late in the week that the administration would draft a new executive order appeared to be based on a clear-eyed assessment of the low probability of success in further appeals, even as Trump, with characteristic bluster, confidently insisted that he would ultimately prevail. The cleanest way for the administration to proceed would be to issue an executive order that by its terms rescinds and supersedes EO 13769. But what would the new order do?
The low-hanging fruit concerns permanent residents. The Ninth Circuit quite correctly considered the application of EO 13769 to permanent residents notwithstanding White House Counsel's eventual determination under pressure that it does not apply to them. The White House Counsel does not have the legal authority to issue an authoritative construction of an executive order and even if he did, it could be changed at any time. A new executive order signed by the president that makes clear that EO 13769 is no longer in effect and that green card holders can come and go as they please would solve this problem.
But by itself, that would not validate the rest of the policy. The Ninth Circuit opinion expressly states that the stripping of rights of holders of other kinds of visas is likely unconstitutional (or to be precise, that the government had not succeeded in showing a likelihood of successfully defeating the claims to that effect). For a new EO to succeed where EO 13769 failed would seem to require that it rescind nearly all of EO 13769. At a bare minimum, any new policy that has a clear disparate impact on Muslims (as EO 13769 does) would be tainted by the same troubled provenance (the "Muslim ban" as announced by candidate Trump and Trump ally Rudy Giuliani), thus rendering it vulnerable to invalidation as religious discrimination.
Accordingly, for a new EO really to cure the problems with EO 13769 would require that it be something completely new. En route to Florida to play golf with the Prime Minister of Japan, Trump suggested that the new EO would focus on new vetting procedures: “We’re going to have very, very strong vetting. I call it extreme vetting; and we’re going very strong on security. We are going to have people coming to our country that want to be here for good reason.”
I'd bet dollars to doughnuts that Trump has no idea what our current vetting procedures are, much less how to make them stronger. Don't believe me? Listen to Act 2 of last week's episode of This American Life, in which people who actually do the vetting explain what the process involves. It is possible to imagine that Team Trump can come up with additional screens that keep out some people who would otherwise be let in, but the whole idea of the 60 and 90 day travel bans was that this time was supposed to be necessary to study the existing process and come up with a better one. Anything the Trump administration puts together by the coming week will, by his own logic, be half-baked.
But making people jump through some extra hoops is not necessarily unconstitutional, so a half-baked vetting-only order that also rescinds EO 13769 would probably be valid.
(4) Is that the way out? It could be, but the administration has indicated that its new EO will not actually displace EO 13769, except for the clarification with respect to green card holders. The Trump administration apparently intends to continue to litigate--and thus to stand ready to enforce--EO 13769, even after the president signs the new, as-yet-undetermined EO. So don't expect a new EO to concede error or otherwise make the litigation go away. Based on what has been said so far, the Trump administration's apparent plans to pile a new order on top of the existing one are a little like someone who committed murder two weeks ago promising that he won't commit any more murders. That's nice, but it doesn't make him any less guilty of the murder he already committed.
(5) That brings me to my own modest proposal to help out the Trump team and, in a rare convergence of Trump's political interest and the national interest, the cause of right and justice: Trump should deliberately drag out the litigation as long as possible so that it is mooted by the expiration of the 60 or 90 days. During that time, EO 13769 would continue to be stayed, but the Trump team can (pretend to) be working furiously behind the scenes to learn what our current vetting procedures are and how to improve them. Then the president could make a dramatic show of signing a new executive order that does exactly two things: (1) It rescinds EO 13769 in its entirety; and (2) It states that new vetting procedures are in place but for reasons of national security they can't be publicly disclosed, lest their disclosure give an advantage to would-be bad hombres seeking to do us harm.
Meanwhile, visa officers would be given secret directives to make some superficial additions to their vetting procedures. At the same time, Trump could denounce the judiciary, saying something like this: "My first order was totally legal and necessary. If the case had ever gotten to the Supreme Court I would have won a tremendous victory. I only hope that during the time that the order was stayed, no bad people came in but if they did, that's on the so-called judiciary. From now, however, extreme vetting is in place."
This would be a face-saving way for the president to avoid a legal defeat and to enact what he claims to have wanted all along. Sure, some of his alt-right supporters would be disappointed that his Muslim ban was lifted, but by then he and the rest of his administration will have found other red meat to feed them.
In my view, a rational administration that had backed itself into this particular corner would take this way out as the best outcome. Because the current administration is far from rational, however, I regard my option (5) as the least likely to be pursued of the ones I've discussed.