Monday’s decision by the U.S. Supreme Court to lift the injunction against most of President Donald Trump’s “travel ban” is a major victory — and not just because he will be able to implement the policy, but because the case is only scheduled to be heard in the fall, i.e. in October at the earliest.
Because most of the controversial provisions of the executive order only last 90 days, Trump it could be fully implemented before the Court hears the case.
The Court is prevented from hearing disputes that are already moot. There must be an active case or controversy in order for challenges to the executive order to be heard. The second version of Trump’s executive order suspends travel from six terror-prone countries for 90 days, and suspends the refugee program for 120 days. Both of those deadlines could be reached before the Supreme Court hears oral arguments, and certainly before it issues a decision.
Some of Trump’s supporters might want to have the case heard, in order to clarify the legal principles on which his executive orders were based — namely, that the President of the United States has broad discretion over immigration and that the judiciary must show deference to the executive in matters of national security. They would also like to see the dubious legal reasoning of some lower court decisions — especially the idea that campaign rhetoric can be used to discern the intent behind presidential actions — tossed aside. But the risk of being shot down by the Court may simply not be worth the trouble, given the Court’s recent penchant for inventing bizarre new legal theories.
Trump can “win” simply by following through on the executive order, then declaring it fulfilled before the Court hears the various challenges to the case, cutting the Gordian Knot of legal theories and advancing his policies.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He was named one of the “most influential” people in news media in 2016. He is the co-author of How Trump Won: The Inside Story of a Revolution, is available from Regnery. Follow him on Twitter at @joelpollak.
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