Tonight, the New York Times published my Op-Ed, urging the Court to schedule the travel ban case for arguments in June, and decide as soon as practicable. Whether the Court rules for, or agains the President, it will signal to the lower courts how to deal with this unpresidented president.
Here is the introduction:
President Trump’s revised travel ban has surged from his signature to the Supreme Court’s docket in less than three months. Under normal procedures, a case granted for review this late in the term would be argued by Thanksgiving with a possible resolution as late as June 2018. This case, indeed this president, is anything but normal. The legality of the travel ban, which implicates the commander in chief’s core statutory and constitutional authority over national security, demands an immediate resolution by the Supreme Court — one way or the other.
When necessary, the justices have quickly answered separation-of-powers disputes in less than a month’s time. Here, such a speedy resolution is essential not only to address the legality of this executive order but, more broadly, to signal to the lower courts how to treat President Trump’s unprecedented behavior in this case and beyond. With all the briefs scheduled to be filed on Monday, the court should follow its practice from previous urgent cases: Schedule argument for 10 days hence, with a resolution as soon as practicable. Letting this issue linger over the summer, or longer, would deny the parties, the courts and our republic what is truly needed: finality.
Here is the conclusion:
The legal status of President Trump’s executive order, and indeed that of his entire administration, needs finality, sooner rather than later. Even if five justices plan to strike down the executive order, they should do so now, and not in the fall, or worse, one year from now. The lower courts desperately need guidance. Should judges look to Mr. Trump’s Twitter feed to determine his true intent? Should the judiciary privilege statements from the commander in chief that conflict with those of the Justice Department? Are all of Mr. Trump’s actions that affect Muslims, at home and abroad, perpetually tainted by his campaign statements? If the Supreme Court signals that the answer to those questions is yes, then the lower courts may declare open season on this administration in contexts far beyond the travel ban. If a more circumspect Supreme Court signals that the answer is no, then, perhaps, the lower courts will fall into line.
Far beyond this interim order, all of President Trump’s foreign and domestic policies will be infected by these same critical disputes. The Supreme Court may be able to evade review here, but these issues are certain to repeat themselves. The nine justices cannot punt these complicated matters, hoping someone else deals with them. All of the issues are fully developed, and ready for resolution now. The buck stops here.