by Marty Lederman
Many close observers of the Court are still scratching their heads, trying to figure out just exactly what the Court did yesterday in Trump v. IRAP–and why. With the luxury of a few hours to ponder the mysteries, here are some tentative speculations on the most commonly posed questions.***
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It's All About that Stay (and Its Surprising Limits) | Take Care
by Marty Lederman
Preliminary thoughts (reserving the right to add more as the day goes on!):
The Court nominally granted certiorari in the two "travel ban" cases today, but for reasons I've already explained--reasons the Court implies in its opinion--that's likely to have very little, if any, legal significance, because the case will almost certainly be mooted out by the time oral argument rolls around--and not because of the original March 14 expiration date, which the Court asked the parties to address, and which is no longer a real issue in light of the President's amended Executive Order changing the expiration date of the entry ban.
No, the case will be moot for two other reasons: For one thing, the 90-day entry ban goes into effect 72 hours from now, at least as to some aliens (see below), and thus it will expire by its terms on September 27. Moreover, as the Court explains, by October the Section 2 "internal review" should be completed ("[W]e fully expect that the relief we grant today will permit the Executive to conclude its internal work and provide adequate notice to foreign governments within the 90-day life of §2(c).”), and therefore the predicate for the entry ban will be kaput by then, too.
To be sure, it is very possible that at the end of the internal agency review, the Administration might impose a new entry ban, or something similar, with respect to aliens who are nationals of particular countries (perhaps a subset of the six now covered; perhaps some different countries altogether--who knows?). But if and when it does so, it will be based on a very different factual record, different national security assessments, and, presumably, it will have different terms. Accordingly, the legality of such a ban (or other entry restrictions) would have to be adjudicated in new lawsuits, beginning at the start, in district courts. I will therefore be very surprised if the Court issues a merits opinion in these cases--indeed, it's very possible there won't be any oral argument.
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