Lawyers for the state of Hawaii argued in a Supreme Court filing Tuesday that President Trump himself has undercut his own argument that his efforts to delay immigration are needed to protect national security – the main public rationale for the disputed White House executive order.
In the next-to-last filing scheduled to be made before the Justices act on the major new controversy over presidential power to set immigration policy, the Hawaii legal team relied upon a Trump memorandum issued June 14 changing the effective date for which suspensions of immigration would begin to run. They would begin to run only if and when lower court enforcement bans are lifted by the Supreme Court, but that will be later than the original language of the executive order had specified.
By itself, the Trump memorandum – made in response to court developments on the executive order – breaks the link between immigration suspensions and a process of developing new “vetting” procedures to help filter out dangerous immigrants, the new Hawaii document argued. Before, the filing said, the suspensions had been defended as necessary to give the government time to develop immigrant-clearance rules, and those rules were necessary to protect against national security threats.
But the latest rulings by lower courts have allowed the Trump Administration to go forward with internal reviews of “vetting” of immigrants even while enforcement of the suspensions is blocked, and those reviews can begin promptly. Trump, in his March 6 order, had mandated two suspension periods – one for 90 days, on the entry of foreign nationals from six Mideast nations, and one for 120 days for refugees seeking entry from anywhere in the world.
Prior Supreme Court rulings on presidential power to restrict immigration, the Hawaii brief said, require proof of a “legitimate rationale” for a policy initiative “and the government no longer has one.”
It added: “The government’s national security rationale for the travel and refugee bans depended on their running contemporaneously with the review and upgrade of vetting procedures….But the President’s June 14 memorandum decouples the bans from the vetting procedures they allegedly facilitate.”
If the Supreme Court does not rule on the validity of the suspensions until its next term, starting in October – the timeline the government has requested – the vetting procedures will have had at least nine months for completion before the Justices can issue a decision on the suspensions, the brief said.
Without a national security need to support the Trump order, Hawaii contended, the only remaining rationale to support it is the forbidden one of singling out adherents of the Muslim faith for differing treatment under immigration policy because of their faith.
The Hawaii filing does not repeat a suggestion its lawyers had made earlier – that if the Justices are going to review the legality of the Trump executive order, they should do so before they recess the current term for the summer within a week or so. Dropping that proposal appeared to be a strategic one, since it leaves unchallenged the government proposal that review go over until the court’s next term, when the development of new vetting procedures would probably have long since been completed and there would be nothing left for the Justices to rule on.
Even if the Supreme Court were to act quickly to lift the lower court orders forbidding enforcement of the suspensions, they would not be in operation for another 90 or another 120 days, respectively, and the vetting procedures review would have been proceeding anyway.
Hawaii does, however, resist the lifting of the lower court orders against the suspensions, saying that would cause grave harm to the state of Hawaii and to its Muslim residents, even while causing little or no harm to the federal government.
The reason that the vetting reviews can go forward within a few days is that two lower courts speeded up the time when the government could do so. The government had asked the U.S. Court of Appeals for the Ninth Circuit, which had narrowed the enforcement curbs on June 12, to put that into immediate effect. It did so on Monday, and the federal trial judge in Honolulu who had issued the decision blocking enforcement quickly followed and narrowed his order as the Ninth Circuit Court required. The enforcement curb on the suspensions themselves continue in effect.
The final brief that is due in the Hawaii portion of the immigration controversy at the court is another government brief, due by noon tomorrow; it will reply to what Hawaii’s filing today had asserted. Once that final filing is made, the Justices could act at any time.
Also pending at the court is a government appeal from another appeals court ruling against enforcement of the suspensions – by the U.S. Court of Appeals for the Fourth Circuit. The challengers to Trump in that case also filed a new brief on Tuesday, paralleling the Hawaii argument that the President’s June 14 memorandum had undercut the national security reason for the executive order.
Both sides in the two proceedings want the Justices to act on them together, and the Justices are expected to act quickly, since they are moving rapidly toward the conclusion of their current term.
Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.
