The article examines how the Trump administration employed a strategic approach during the first travel ban litigation, focusing on speed to bypass thorough legal scrutiny. This involved quickly implementing and modifying policies, thus obtaining Supreme Court approval without full consideration of the legal merits.
The initial travel ban, a broad prohibition on entry from seven Muslim-majority countries, was deemed illegal and replaced with a slightly modified, temporary version. The administration strategically requested expedited briefing but delayed oral arguments, ensuring a quick Supreme Court decision without a deep analysis of the policy's legality.
This strategy allowed the administration to partially enforce the temporary ban, quickly implementing a third iteration before the second expired, giving an appearance of legitimacy to a contentious policy. The Court's acceptance of the third iteration was influenced by the status quo of a travel ban.
The Trump administration continues this strategy in current litigations, such as the attempted shutdown of USAID. The administration uses similar speed-based tactics and factual opacity to avoid thorough scrutiny and aims to obtain speedy rulings from the Supreme Court, even through its shadow docket.
Examples include the administration's claims regarding USAID funding, where it rushed to the Supreme Court and claimed logistical impossibility to pay contracts, despite evidence proving otherwise. While this tactic was initially unsuccessful, the potential for future success, and the weakening of the rule of law this demonstrates, is a significant concern.
The article emphasizes the risk to the Supreme Court's credibility if it continues to accept the administration's claims without adequate evidence. In particular, the administration's assertion regarding summary expulsions, which lacks supporting evidence, is highlighted as a point of concern.
The conclusion emphasizes the need for the Court to reject this rush strategy and to thoroughly examine facts presented to them, before they are used to undermine the rule of law.