With the Supreme Court having both lifted many of the injunctions on President Donald Trump’s controversial travel ban and scheduled an October hearing for the case, there’s one key question that, once answered, will have a profound effect on just how much litigation will surround the policy moving forward.
That question is whether or not Trump decides to make the ban permanent, create new vetting procedures moving forward, let the executive order simply expire, or ask for additional time.
“The question everyone should be asking — how much should we read this partial stay as a ruling on the merits of whether the ban is actually unconstitutional?” Deborah Pearlstein, a professor at the Cardozo School of Law at Yeshiva University who served in the Clinton administration, wrote in an email. “This sets up a big test of presidential power — but only if the administration decides to make its ban permanent between now and September. The court just deftly put the ball back in the president’s court.”
The White House has claimed the ban, which temporarily restricts travel to the US by citizens from six majority-Muslim countries for 90 days and from all refugees for 120 days, is needed so it can review its vetting process.
It is possible the bans will no longer be active by the time the court is scheduled to hear the case. The court asked both parties to address whether the case would be moot by then. With oral arguments set for early October, the 90-day pause would likely have been completed, while the 120-day ban would be in its final days.
If the Trump administration decides to take no further action, and the executive order is left simply to expire, Pearlstein told Business Insider there would be an extremely strong case for the litigation being moot, meaning the court could not review it.
“The whole point was Trump gets 90 days to carry out this internal review. By the time the court gets this case, it will have had those 90 days, [so] why is there any further legal question,” Pearlstein said in a phone interview. “Plaintiffs arguing the case is moot are going to have an extremely strong case at that point if he takes no further action. The court may still hear the case, but just focus on arguments about mootness.”
She added the administration may argue the Supreme Court should “still hear the case on the merits,” but “the arguments will be extremely strong that the case is moot.”
If the Trump administration decides to either make the ban permanent, issue a new executive order, or take further action imposing new procedures on travel from those six countries — Libya, Sudan, Somalia, Iran, Syria, and Yemen — or beyond, Pearlstein said the court will most likely dismiss the case or remand the case to a lower court.
“In essence, that would be a whole new lawsuit,” she said. “Who knows what that order is. Maybe it doesn’t discriminate, maybe it doesn’t distinguish those six countries, maybe it proceeds more broadly or more narrowly and avoids some of the legal problems this one created. So, the appropriate and most likely thing for the court to do in those circumstances is send the case back to the lower courts and essentially start all over again.”
If that option is what the Trump administration decides to do moving forward, its looking at a potential years-long court battle.
The other possibility Pearlstein outlined was the chance the administration asks the court for more time to review the vetting procedures. But she considers that option to be the least likely of the three.
The administration “would be taking a real risk” by going forward with that option, she said.
“And the risk is that it looks like something that is in less than good faith,” she said. “The administration announced in late January that it wanted to undertake this review. And by October, it will have had the better part of a year to do that. If it hasn’t been able to complete it in almost a year, a justice could almost wonder if in fact, that was the real basis for seeking the ban of people from this country in the first place.”
Top Democrats have seized on the third point Pearlstein made, asking why the president hasn’t already been able to review the vetting process since more than 90 days have passed in his term. Along the campaign trail, Trump repeatedly called for a ban on Muslims entering the US, and opponents of the ban have used Trump’s past statements to argue the ban is intended to unconstitutionally target Muslims.
“Remember the purported reason for President Trump’s original travel ban?” Democratic Sen. Dick Durbin of Illinois said in a statement. “He needed a 90-day pause to formulate an extreme vetting model for travelers from these seven, now six, Muslim-majority nations. It has now been 150 days, and the President is spending more time fighting American judges than any suspected terrorists.”
“The Supreme Court will revisit this awful policy again in October,” he continued. “Any chance President Trump will have his vetting reform ready by then?”