Instant Analysis of SG’s Petition for Certiorari and Applications for Stay in Travel Ban Case

June 2nd, 2017

After the Fourth Circuit affirmed the district court’s injunction in IRAP v. Trump, the government asserted it would file its appeal to the Supreme Court “soon.” Soon came late this evening, as the government filed three documents with the Court. First, a petition for certiorari in IRAP v. Trump; second, an application for a stay pending disposition of the cert petition in IRAP v. Trump; third, an application for a stay pending appeal to the Ninth Circuit in Hawaii v. Trump (H/T Chris Geidner).

IRAP v. Trump

The petition for certiorari asks the Court to review the en banc Fourth Circuit’s decision, upholding the injunction from the District of Maryland. The accompanying petition for a stay asks the Court for “expedited proceedings.”

The government also respectfully requests expedited briefing on and consideration of its petition for a writ of certiorari.1

1… It is therefore appropriate for this Court to grant relief under Rule 23.3, especially in light of timing concerns and the government’s request for expedited briefing on and consideration of its petition for a writ of certiorari.

If the Court chooses to expedite briefing, it is conceivable that a special hearing is held before the beginning of the October 2017 term, perhaps as early as September. If the Court decides not to expedite the case,  depending on how long the challengers take to reply, the case could linger until the long conference. Oral arguments would not be heard until 2018, at the earliest. I suspect the Court takes the matter seriously, and grants certiorari sooner rather than later.

Petitions for certiorari only require four votes. Applications for stays require five votes. If there are five votes for a stay, then there must be four votes for certiorari. In other words, if the Court can muster the votes to grant the stay, then certiorari is a foregone conclusion, and the travel ban can go into effect, at least, until the case is resolved on the merits. Conversely, if there are not five votes for a stay, the argument in favor of urgently vacating the injunction may be weakened by the slow litigation posture.

The SG adduces several factors in favor of granting certiorari:

ll of the relevant factors strongly support a stay of that extraordinary injunction. See Maryland v. King, 133 S. Ct. 1, 2 (2012) (Roberts, C.J., in chambers) (listing factors). First, there is a reasonable probability that the Court will grant certiorari. The decision below globally enjoins a formal national- security determination by the President of the United States, on the basis that he — and, by implication, the Cabinet-level officials who recommended this measure — acted in bad faith. Second, there is more than a fair prospect that the Court will vacate the injunction. As explained more fully in the accompanying petition, Doe #1’s constitutional claim is neither justiciable nor meritorious. Third, preventing the Executive from effectuating his national-security judgment will continue to cause irreparable harm to the government and the public interest. At a minimum, the injunction — which bars enforcement of Section 2(c) as to all persons worldwide — should be stayed to the extent that it goes beyond addressing the wife of Doe #1, the sole plaintiff whom the court of appeals found to have standing.

I predict the Court will deny the stay, but grant certiorari. Here, the SG flags a number of significant executive-power cases where the Court has granted review:

This Court has granted certiorari to address interference with Executive Branch determinations that are of “importance * * * to national security concerns.” Department of the Navy v. Egan, 484 U.S. 518, 520 (1988); see Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 12 (2008). It also has granted review of “important questions” concerning interference with “federal power” over “the law of immigration and alien status.” Arizona v. United States, 132 S. Ct. 2492, 2498 (2012); see United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam). And it has granted review to address interference with presidential power, even in “one-of-a- kind case[s].” Clinton v. Jones, 520 U.S. 681, 689 (1997); see NLRB v. Noel Canning, 134 S. Ct. 2550, 2558 (2014); American Ins. Ass’n v. Garamendi, 539 U.S. 396, 401 (2003). All of those considerations exist here and counsel strongly in favor of review.

If certiorari is granted, I suspect the Court will hear the case on an expedited basis.

At this late hour, I will flag a few passages of note in the cert petition. First, the government stresses a point that I predicted would become more prominent on appeal: Article II:

“The exclusion of aliens is a fundamental act of sov- ereignty” that lies in the “legislative power” and also “is inherent in the executive power to control the foreign affairs of the nation.” Knauff, 338 U.S. at 542; see Harisiades v. Shaughnessy, 342 U.S. 580, 588-589 (1952) (Control of the Nation’s borders is “interwoven” with “the conduct of foreign relations” and “the war power.”).

The SG expressly cites Zivotofsky v. Kerry, which in turn quoted  Youngstown, for the proposition that we are in Jackson’s first tier– a point I have stressed from the earliest days.

The court did not dis- pute that the President acted at the height of his powers in instituting Section 2(c)’s temporary pause on entry by nationals from certain countries that sponsor or shelter terrorism . . . . Congress’s expansive grant of authority means that the President’s power “is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2083-2084 (2015) (citation omit- ted).


The stay petition frames the Article II issue in slightly different terms:

The injunction barring enforcement of Section 2(c) undermines the President’s constitutional and statutory power to protect national security.

Second, the petition quotes some of the greatest hits from the en banc dissents:

JudgesAgee,Niemeyer,andSheddfileddissents, and each judge joined each dissent. App. 146a-207a. Judge Agee opined that respondents’ Establishment Clause claim is not justiciable. App. 191a-207a. “[T]he imagined future denial of a visa to [Doe #1’s] wife is simply too vague and speculative” to confer standing, he concluded, and Doe #1’s alleged “stigma” from the Order “is not a cognizable injury” but “simply a subjec- tive disagreement with a government action.” App. 197a-198a. Judge Niemeyer opined that the majority’s Establishment Clause analysis “plainly violates” Man- del, and its “extratextual search for evidence suggest- ing bad faith” both “radically extends” this Court’s precedents and “has no rational limit.” App. 157a, 165a, 170a. Judge Shedd opined that the district court “totally failed to respect” the deference due to the Executive’s national-security judgments, and the “shortcomings” in its “selectively negative interpreta- tion of political campaign statements” are “obvious.”

Third, the government stressed that Mandel’s requirement of “bona fide” refers only to the face of the executive order (a point I elaborate on in Part IV of my series on IRAP v. Trump, which should be published on Lawfare on Friday):

Mandel compels rejecting Doe #1’s constitutional challenge. The court of appeals accepted that Section 2(c)’s entry suspension rests on a facially legitimate reason: protecting national security. App. 43a. And the Order supplies a bona fide factual basis for that reason: Section 1(d) explains that Congress or the Executive previously designated the six listed countries as pre- senting terrorism-related concerns that “diminish[] the foreign government’s willingness or ability to share or validate important information about” its nationals. App. 292a-293a.

Fourth, the government raised in a footnote an important point, which I also discuss in Part IV: Mandel concerns the denial of visas, not all executive-branch decisions.

Mandel’s substantive standard applies to challenges to decisions to deny visas to aliens seeking entry. It does not govern every issue concerning immigration—such as post-removal detention, Zadvydas v. Davis, 533 U.S. 678 (2001), or the procedure for exercising legisla- tive power over the suspension of deportation of aliens present in the United States, INS v. Chadha, 462 U.S. 919 (1983).

As I argue in my post (tomorrow), I don’t think any of these claims are ripe for the Mandel test until visas are denied. In other words, facial challenges are premature.

Fifth, the government (for what I think is the first time) uses the phrase “Muslim ban,” preceded by the word “not.”

Section 2(c) is not a so-called “Muslim ban,” and campaign comments cannot change that basic fact.

Sixth, the government addresses, head on, the President’s post-inauguration statements (along similar lines I noted in Part I):

The court of appeals cited statements by the President and aides made between the January Order and the Order—describing the Order as pursuing “the same basic policy outcome,” reflecting the same “principles,” or a “watered down version” of the January Order. App. 50a, 51a (citations omitted). But as the Order explains, both Orders aimed at the same national-security objec- tive: facilitating a review of existing screening and vetting procedures. App. 289a-298a (§ 1(b)-(i)). The Order pur- sues that objective through substantially revised provi- sions; the differences are clear on the Order’s face.

The court of appeals held that a passing remark by the President when signing the January Order signals an improper motive. After reading its title—“Protecting the Nation From Foreign Terrorist Entry Into the United States,” App. 277a—he stated, “[w]e all know what that means.” App. 50a (citation omitted). Minutes earlier, in the presence of the newly sworn-in Secretary of Defense, the President had said, “I am establishing new vetting measures to keep radical Islamic terrorists out of the United States of America * * * . We want to ensure that we are not admitting into our country the very threats our soldiers are fighting overseas.”12 In context, the President’s passing remark is reasonably understood to refer to terrorist groups like ISIL and al Qaeda, not all Muslims. It is at least ambiguous, and the court erred in setting aside an Executive Order based on an offhand, six-word comment.

Seventh, the SG quoted President Trump’s recent remarks from Saudi Arabia as evidence of the President’s views towards Islam, and more broadly, as potentially undermining his ability to conduct foreign diplomacy (he needs all the help he can get):

By attempting to delve into the President’s supposed true motives for Section 2(c), the court of appeals also injected itself into sensitive matters of foreign affairs and risked “what [this] Court has called in another context ‘embarrassment of our government abroad’ through ‘multifarious pronouncements by various departments on one question.’” Sanchez-Espinoza v. Reagan, 770 F.2d 202, 209 (D.C. Cir. 1985) (Scalia, J.) (quoting Baker v. Carr, 369 U.S. 186, 217, 226 (1962)). In his recent address to a gathering of Middle East leaders in Saudi Arabia, the President urged that the global fight against terrorism “is not a battle between different faiths, different sects, or different civilizations,” but one “between barbaric criminals who seek to obliterate human life and decent people” of all religions who “want to protect life.”7 Although the President decried “the murder of innocent Muslims” by terrorist groups, and called for “tolerance and respect * * * no matter [one’s] faith or ethnicity,” May 21 Speech, the court of appeals invalidated Section 2(c) as rooted in “religious intolerance, animus, and discrimination,” App. 2a. The court’s pronouncement — that the President of the United States took official action based on animus toward one of the world’s dominant religions, notwithstanding his own official statements to the contrary — plainly carries the potential to undermine the Executive’s ability to conduct foreign relations for and protect the security of the Nation.

I had planned to write a faux 28(j) letter to the Fourth Circuit, citing these remarks as justification to lift the taint. I’m glad the DOJ did so. I also predicted the government could raise similar arguments with respect to a decision to fire Robert Mueller, as his investigation was frustrating relations with Russia.

Eighth, the SG stated that the Fourth Circuit’s decision gives the President no guidance as to when the taint may be lifted:

Although the court offered assurances that the President’s statements do not “forever taint” his future conduct, App. 61a n.21 (quoting McCreary County v. ACLU of Ky., 545 U.S. 844, 873-874 (2005)), its opinion “gives the President no guidelines for ‘cleansing’ himself of the ‘taint’ [it] purportedly identified,” App. 171a (Niemeyer, J., dissenting). It states only that “[w]hether a statement continues to taint a government action is a fact-specific inquiry,” App. 61a n.21, which is a confession of uncertainty (and a portent of future litigation) over what action the President may take concerning Muslim-majority (or even non-Muslim-majority) countries.

Ninth, the SG looked to US v. Nixon to reject the proposition that courts should consider “extrinsic material” to second-guess the President’s determinations.

Attempting to do so also threatens impermissible intrusion on privileged internal Executive Branch deliberations, see United States v. Nixon, 418 U.S. 683, 708 (1974), and carries the potential for litigant-driven discovery that would disrupt the President’s execution of the laws, see Nixon v. Fitzgerald, 457 U.S. 731, 749-750 (1982). Litigants in other cases challenging the Order already have requested such discovery. The plaintiffs in the Washington litigation, for example, have sought nearly a year of discovery, including up to 30 depositions of White House staff and Cabinet-level officials. See Joint Status Report & Discovery Plan at 5-13, Washington v. Trump, No. 17-141 (W.D. Wash. Apr. 5, 2017) (ECF No. 177). This Court should reject a rule that invites such probing of the Chief Executive’s actions in this manner. See Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 616-617 (2007) (Kennedy, J., concurring).

I’m glad the government stressed that the remarks were made next to the “newly sworn in Secretary of Defense.” Watch the video, and you will understand the context.

Tenth, the government aims to rebut that it has not moved expeditiously:

As it stands, litigating the entire case — from the filing of the complaint to resolution by the en banc court of appeals — has taken under three months. The government’s conduct reflects the importance of these issues and the serious harm the injunction threatens to the public interest.9

9 Proceedings in Hawaii were extended slightly because the district court initially entered only a temporary restraining order; litigation over the preliminary injunction’s terms was not complete until March 29, 2017. Gov’t C.A. Stay Reply Br. 3-4.

The petition’s final paragraph is similar to closing remarks SG Wall made to the Fourth and Ninth Circuits:

This Order has been the subject of passionate political debate. But whatever one’s views, the precedent set by this case for the judiciary’s proper role in reviewing the President’s national-security and immigration authority will transcend this debate, this Order, and this constitutional moment. Precisely in cases that spark such intense feelings, it is all the more critical to adhere to foundational legal rules. The decision below departs from those rules, and calls into question the Executive and his authority in a way that warrants this Court’s review.

I couldn’t have phrased it any better.

Hawaii v. Trump

Though the document is styled as an “application for stay pending appeal” to the Ninth Circuit, it should also be considered a petition for certiorari before judgment. Specifically, on page 6, the SG explains:

For these reasons, the government respectfully requests that this Court enter a stay pending the government’s appeal. In addition, the Court may construe this application as a petition for a writ of certiorari before judgment, see, e.g., Purcell v. Gonzalez, 549 U.S. 1, 2 (2006) (per curiam), and grant the petition along with the petition for a writ of certiorari in IRAP, while staying the injunction pending a final disposition.

In the stay application from the Fourth Circuit, the SG explains the concurrent posutre:

imilarly here, the Hawaii injunction cannot justify denying a stay. If the Ninth Circuit vacates or stays the Hawaii injunction, the premise of respondents’ argument would evaporate. And if the Ninth Circuit affirms the injunction, that injunction could be brought before this Court, and a stay from this Court would be warranted for the same reasons as in this case. In any event, to enable Sections 2 and 6 of the order to go into effect without further delay, the government is also filing this same day an application for a stay by this Court of the Hawaii injunction pending disposition of the Ninth Circuit appeal and further proceedings in this Court.

Against this frame, if the Court decides to grant the petition for certiorari in IRAP v. Trump, it becomes very likely that the Court would also grant certiorari before the Ninth Circuit’s judgment in Hawaii v. Trump. This two-pronged approach eliminates the possibility that the Ninth Circuit could affirm the district court’s injunction as to the travel ban, but vacate the injunction as to the “internal and diplomatic activities of government agencies.” As Amir Ali explained, such a vacatur would start the clock, and potentially moot the case by the time the Justices hear the appeal.

All things considered, the SG’s office must be commended for compiling these prodigious pleadings in a week.