OT: Hoist by his own petard...

[Alan Baker]

'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).'

<https://www.justsecurity.org/42166/presidents-clarifying-memorandum-destroys-case-entry-ban/>

'So what, you ask, might be the true purpose of a “floating” 90-day ban
on entry by the nationals of six Muslim-majority countries? A ban on
entry that goes into effect at some undetermined point in the future,
months after the government has completed the internal review of its
entry procedures for which the ban was initially held out as a necessary
prerequisite, and more than three months after the AG and DHS had
“determined” that a temporary suspension was warranted?'

[John B.]

I bet SCOTUS won't even agree to hear the case.