IT'S JUST HATE:

The government's argument for suspending all entry into the United States of non-citizens from seven (now six) Muslim-majority countries has, from its inception, been predicated on two separate--but related--claims: First, that such a ban is a necessary "temporary pause" to allow the government to review its internal procedures for granting entry in the future to nationals from these countries.  Second, that the Secretary of Homeland Security and the Attorney General have "determined" that such review (and, therefore, such a "temporary pause") was necessary for national security. In other words, the most outward-facing (and controversial) aspect of the Executive Orders--the entry ban--was simply a means to their more important, inward-facing end, the internal review procedures.

Two developments on Wednesday have called this understanding--and, with it, much of the underlying justification for the entry ban--into serious question. First, President Trump signed a memorandum "clarifying" that the provisions of the second Executive Order (and their 90-day clock) become effective only once the current injunctions are "lifted or stayed," a move designed apparently to preempt the argument (based on the plain language of the Executive Order) that it expired last night at midnight. Second, the Justice Department filed a little-noticed motion in the Ninth Circuit to issue the mandate in Hawaii v. Trump immediately--so that those aspects of the Executive Order that Monday's Ninth Circuit ruling un-enjoined (to wit, the internal review procedures) could go into immediate effect (although the clarifying memorandum provides that they won't go into effect until 72 hours after the injunction is formally lifted).

As we explain in the post that follows, in the process, these developments de-couple the entry ban from the internal review procedures--and, in doing so, undermine (perhaps fatally) the government's strongest arguments for the ban itself. 

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