Sunday , July 09, 2017 - 5:00 AM1 comment
Ninety days. That’s how long people have on “90 Day Fiance” to decide to marry mail-order spouses before their 90-day K-1 visas expire.
Ninety days from today is October 10. Ninety days is about a quarter of a year. In the legal world, 90 days are gobbled up in procedure with lightning speed.
Which brings us to President Trump’s travel ban. The Supreme Court sort of ruled to reinstate Trump’s executive order after the lower courts blocked it. The media touted the decision as a victory for the Trump administration, but what the court’s ruling really showed was how legally inept the executive orders were.
The decision is a master's-level class on how not to do executive orders and why messing with the Supreme Court is probably a bad idea.
The first executive order (EO-1) was issued Jan. 27, 2017. On Feb. 3, a federal District Court in Washington state and the Ninth Circuit Court of Appeals blocked five paragraphs of that order from being implemented. They blocked the paragraphs because they violated the due process clause of the Constitution.
Instead of fighting the decision, a new executive order (EO-2) was issued March 6 that would become effective on the 16th of that same month. EO-2 replaced EO-1, rendering the Washington state lawsuit moot. EO-2 attempted to solve the constitutional problems with EO-1, but was challenged in two different lawsuits — one by Hawaii, and the other by the International Refugee Assistance Project, in Maryland Both the Fourth Circuit Court of Appeals and the Hawaii District Court found that portions of EO-2 violated the establishment clause (religious freedom) of the Constitution and blocked implementation of portions of EO-2 before it ever went into effect.
The blocked portions would have suspended immigration for all people from seven countries for 90 days. Basically, all of EO-2 was OK, except for paragraphs 2(c), which suspended entry into the U.S., 6(a), which suspended refugee admission into the U.S., and 6(b), which reduced the number of allowed refugees. There were also some provisions in paragraphs 2 and 6 that pertained to internal executive review that were stayed by the courts.
It’s helpful to understand how lawsuits work. One of the first things they teach you in law school is “standing.” “Standing” means you have to have a "dog in the fight." You must show that the law impacts you personally, or you have no standing, thus, no lawsuit.
The main litigant in the IRAP case was John Doe No. 1, a lawful, permanent resident of the United States whose Iranian wife was seeking entry into the country to be with her husband. In the Hawaii case, the party was Dr. Ismail Elshikh. A United States citizen, Dr. Elshikh's Syrian mother-in-law was seeking to enter the United States to visit her family. Both these individuals were unconstitutionally impacted by EO-2, and as a result, the applicable paragraphs of EO-2 were ordered by the courts not to be enforced and the suspension would not apply to these circumstances.
The government asked the Supreme Court to review the case and remove the injunctions entered against EO-2. The Supreme Court ordered a rapid briefing cycle, asking for a response from the victorious side in the lower court by June 12.
In the June 12 response, IRAP responded with the legal equivalent of “What’s the point?” The paragraphs that had been suspended were for only a 90-day suspension and 90 days ended two days from the response requirement, on June 14.
So June 14, President Trump amended EO-2 so that the effective date of the provisions stopped by the courts wouldn’t go into effect until the court injunctions were lifted. It had taken the administration almost 90 days to realize the courts hadn’t stopped time. With the change, there was still a reason to move forward, so the Supreme Court went back to the actual issues.
Here the Supreme Court showed its legal jiu jitsu skills. First, the court put the case on its October calendar. Second, it ruled that everyone needed to address the “What’s the point?” argument in October. Third, it left the injunction in place for John Doe No. 1 and Dr. Elshikh and others “similarly situated.” This means everyone who originally sued and everyone in the same circumstances won. Fourth, it lifted the injunction for everyone else, effectively turning on EO-2’s amended 90-day clock, which means there won’t be any point to this by the time it gets to the Supreme Court in October.
The Trump administration, clearly missing the boat, decided grandparents are not "similarly situated" in the same way as Dr. Elshikh’s mother-in-law. We are thus insured to be entertained with litigation in Hawaii and other states over why a mother-in-law is a “bona fide relationship” according to the Supreme Court, while a grandmother isn’t, according to the Trump Administration — for the next 90 days, anyway.
But in 90 days? It will all be over. At least until the next executive order or a new episode of “90 Day Fiance.”
E. Kent Winward is an Ogden attorney. Twitter: @KentWinward
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