Symposium: How the acting solicitor general (sort of) saved the travel ban
on Jul 12, 2017 at 2:18 pm
Steve Vladeck is a professor of law at the University of Texas School of Law.
In her contribution to this symposium, Leah Litman writes that “it’s likely we’ve already heard the court’s last and only words (which were no words at all) on the merits [of the travel ban] . . . because the case will likely be moot by the time the court hears argument in the fall, or reaches a decision.” Whoever else claims victory in that scenario (hint: everyone), it seems to me that the real winner will be Acting Solicitor General Jeffrey Wall — who, in retrospect, may have understood how to maximize the government’s chances before the Supreme Court better than anyone else (including, perhaps, the justices themselves).
I’ve written (well, tweeted) before about some of the procedural quirks in exactly how the government brought the travel-ban litigation to the Supreme Court. Three, in particular, stand out:
First, although the U.S. Court of Appeals for the 4th Circuit issued its 10-3 en banc decision affirming a nationwide injunction of the key provision of the travel ban on Thursday, May 25, the government waited a full week before applying to Chief Justice John Roberts for a stay of that decision (pending the Supreme Court’s disposition of the government’s contemporaneous cert petition). That may not sound like a lot, especially since half of that week was Memorial Day weekend, but both legally and optically, any delay could have been seen as undermining the argument for such emergency relief — which was itself predicated on the claim that the Maryland and Hawaii injunctions were causing irreparable harm to the government every moment that they remained in force. Indeed, let’s not forget that the government could have asked the Supreme Court to step in two months earlier, had it sought certiorari before judgment in the 4th Circuit.
Second, and far more significantly, once the government finally did file its stay applications and cert petition, it requested expedited briefing but not expedited argument. In other words, the government asked the Supreme Court to decide whether it would take up an appeal from the 4th and, later, 9th Circuit’s decisions by the end of June, but didn’t want the justices actually to hear such an appeal until October. As with the delay in the filing itself, not asking for expedited argument seemed a risky gambit, because it put that much more pressure on the stay applications — asking the court, in effect, to reinstate the entire executive order for at least four months.
Especially given the precedent for emergency, end-of-term arguments and decisions that Lyle Denniston reminded everyone about, not seeking similar treatment seemed, at the time, a perplexing move on the government’s part. And even if the government was of the view that an immediate, emergency argument would actually be to its detriment (on the theory that, in such a circumstance, the justices would be more inclined to defer to the status quo), it could at the very least have sought an off-schedule September argument — as seen most recently with the reargument of Citizens United v. Federal Election Commission back in 2009. The difference between a September and October argument may not seem like much in the abstract, but if the executive order runs its course by the end of September (as now it seems it will), that could be the whole ballgame for the reasons Litman set out in her post.
Third, and a bit further into the weeds, when the 9th Circuit issued its own ruling on the travel ban on June 12, the government sought to extend the ongoing briefing on its stay application for an additional week — ostensibly to allow time to respond fully to the more recent ruling. This move may seem entirely technical, but it came while the Supreme Court’s press corps was awash with speculation that the justices might take the exact step to which Denniston had alluded, and hold an expedited hearing to resolve the case on the merits before recessing for the summer. However well-founded — or not — such speculation might have been, the government’s request, combined with the justices’ own travel schedules, necessarily ran out the clock on such a possibility.
And although the government did not get what it asked for substantively when the Supreme Court issued its interim ruling on June 26 (with a majority leaving the injunctions in place as applied to those with a “bona fide connection” to the United States), it got exactly what it asked for procedurally. The court granted the stays (in part), granted certiorari, and set the case for argument during its first scheduled sitting in October (and not a moment sooner). As the per curiam opinion notes on page 9, with a parenthetical explaining (and perhaps reflecting the justices’ own surprise) that “[t]he Government has not requested that we expedite consideration of the merits to a greater extent,” the cases will be heard “during the first session of October Term 2017.”
So why, exactly, would the lawyers in the Office of the Solicitor General, the very last people who would make tactical litigation mistakes before the Supreme Court, take three such seemingly unorthodox steps in presenting such important cases to the court? I’m only speculating, of course, but imagine that the lawyers in that office, who have an ethical and legal obligation to defend the official acts of the U.S. government to the fullest extent supported by law, had become convinced of the following three propositions:
(1) The district courts’ injunctions are overbroad in significant respects;
(2) If and when they reach the merits, at least five of the justices are likely to vote to invalidate the travel ban as applied to a large number of individuals – and thereby to affirm the injunctions to a significant extent; and
(3) Such a merits decision should be avoided if at all possible.
In that scenario, the goal would have been to structure the litigation to allow the Supreme Court to narrow the injunctions before holding oral argument and issuing a decision on the merits, and then to make the case go away before such an argument could happen. The court’s own summer recess provided the perfect cover for exactly such a maneuver, because it’s the only time all year that the justices go more than 90 days without a scheduled sitting.
Of course, this could all be a coincidence. Indeed, of the three quirky moves I highlighted above, two could have completely plausible alternative explanations. But the request for an October argument, specifically, indicates most strongly to me that these moves were all made by design. If so, then I think it’s worth admiring just how well-conceived that design was, at least thus far.
Besides providing an interesting back story, the above discussion brings up several larger points that I believe are worth considering.
For starters, the government’s apparent litigation strategy suggests that not even the administration’s own lawyers believe (or, at the very least, are reasonably confident) that the Supreme Court will uphold the entire executive order on the merits. Although many have suggested that the court’s interim June 26 ruling is proof that the justices are likely to side with the government on the merits if and when the time comes, the fact that a majority voted to leave the injunctions in place as applied to any non-citizen with a “bona fide connection” to the United States strongly implies the opposite. Simply put, the government’s lawyers may well have been on to something, and therefore fully justified in not pressing the matter more aggressively.
The strategy also enabled the acting solicitor general and his colleagues to accomplish as much as could reasonably have been expected under the circumstances. Getting the Supreme Court to put even portions of the executive order back into effect — in a part of the ruling from which no justice apparently dissented — was a modest victory legally, but a significant victory optically, especially if it stemmed from a skeptical assessment of the government’s chances on the merits.
Finally, and most importantly for present purposes, the apparent strategy to date is predicated on a fact not yet in evidence — that the controversy actually will become moot before the justices reconvene in October. That depends, to a large degree, on President Donald Trump. When the 90-day review contemplated by the executive order runs its course in September, does the president leave well enough alone (which might moot the case before the Supreme Court hears argument), or does he issue another executive order seeking to extend the “temporary pause” on entry from the six designated countries, which would certainly give the justices something to decide?
We’ll have to wait and see, of course. But the government’s litigation strategy thus far suggests that at least some of the Justice Department’s top lawyers may well be rooting, whether for personal or professional reasons (or both), for the former.