The Trump administration’s legal tactics have raised eyebrows over the years, especially in high-stakes cases that have reached the Supreme Court. One of the most controversial strategies employed by the government is its use of speed and obfuscation to bypass full legal scrutiny. This playbook, perfected during the administration’s battle over the travel ban, has been deployed time and again, most recently in cases involving summary expulsions of foreign nationals.
The Speed and Obscurity Strategy
The Trump administration has consistently used a fast-paced litigation approach to obscure key facts and avoid detailed legal examination. This tactic was first seen with the travel ban (a.k.a. the “Muslim Ban”), and it has been replicated in cases ranging from deportations to funding freezes. The idea is simple: the faster the case moves, the less time there is for the courts to scrutinise the facts, allowing the administration to push controversial policies through without proper checks and balances.
Key Elements of the Strategy:
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Speed over Substance: The government rushes cases, ensuring that decisions are made quickly without careful consideration of the underlying issues.
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Obscured Facts: By moving fast, the administration can mask the facts that might undermine its case or expose weaknesses in its policies.
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Rushed Deadlines: Quick decisions pressure the court to act before all the details are clear, allowing the government to get away with more.
This strategy hinges on the assumption that the Supreme Court is more likely to defer to the government’s representations when the pace of litigation is rapid, reducing the opportunity for a thorough fact-based review.
The First Travel Ban: A Case Study in Speed and Obfuscation
The first iteration of the travel ban announced in January 2017 was a mess. It was hastily enacted, with no exceptions for visa or green card holders, creating chaos at airports around the world. The ban was widely criticised for its lack of preparation and clarity, as it was implemented with no prior notice, leaving travellers stranded.
Key Moments:
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The First Ban: Announced on January 27, 2017, without warning, causing immediate chaos.
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The Second Ban: A slightly revised version, but still fundamentally flawed, as it applied to all nationals from seven majority-Muslim countries.
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The Third Ban: A more polished version, which was presented as a product of a more formal process, though it still targeted Muslim-majority countries.
The administration’s approach to this case was characterised by its urgency. When courts temporarily blocked the ban, the administration pushed for an expedited process, asking the Supreme Court to weigh in quickly. This fast-tracking tactic ensured that by the time the case was heard in court, the policy had already been in effect for months.
The Importance of Timing: Why Speed Matters in Legal Strategy
One of the most effective tools in the administration’s arsenal has been its use of expedited timelines. By asking for rushed decisions and pushing cases through without careful fact-finding, the government has been able to create a situation where the Supreme Court has less time to question the factual underpinnings of its actions.
For example, during the travel ban litigation, the administration requested expedited briefing but delayed oral arguments. This clever timing meant that the Supreme Court could rule without fully examining the facts, which allowed the Trump administration to claim victory even in the face of a controversial policy.
Example from the Travel Ban:
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The Court allowed the second ban to go into effect temporarily, essentially locking in the policy while the case moved through the courts.
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By the time the third version of the ban came to the Court, it was presented as the product of a formal review process, despite it essentially being a reworked version of the original ban.
The Latest Litigation: Summary Expulsions and Legal Obfuscation
Now, the Trump administration is applying this same strategy to summary expulsions of foreign nationals, with some being sent to foreign prisons in El Salvador without due process. The case is currently before the U.S. Supreme Court, which must decide whether the government can proceed with these expulsions despite a lower court ruling against them.
In this instance, the administration is asking the Court to accept its claims without evidence, including the assertion that foreign nationals facing deportation will be able to challenge their expulsions—even though they might not even know they are being expelled. The speed of the case means the Supreme Court will have limited time to examine these claims.
This case highlights a key issue: when the government moves fast, it can manipulate the legal process to its advantage by limiting scrutiny and pushing controversial policies before the court has a chance to properly review them.
Why This Legal Strategy Matters
The Trump administration’s reliance on speed and obfuscation in litigation has serious implications for the rule of law. By circumventing thorough factual examination, the government has been able to enact policies with minimal pushback from the courts. This is particularly concerning when it comes to policies that impact the rights and freedoms of individuals, such as immigration and due process.
This approach creates a dangerous precedent, allowing the government to use legal obfuscation to bypass judicial oversight, undermining the very purpose of the judicial system.
The Need for Scrutiny
As the Supreme Court considers the latest round of cases involving the Trump administration, it must remember that speed should not trump justice. The Court has a duty to carefully examine the facts and legal arguments presented, especially when the rights of vulnerable individuals are at stake.
In the case of summary expulsions, the Trump administration should be forced to prove its case with clear evidence. Rushing the process only serves to undermine the integrity of the legal system and erode public trust in the judicial process.
Conclusion
The Trump administration’s legal strategy of using speed to obscure facts and avoid full scrutiny has been highly effective, but it poses serious risks to the rule of law. As the Supreme Court prepares to hear cases on summary expulsions and other contentious policies, it must take care to avoid falling into the trap of expedient decisions without fully understanding the implications.
By pushing forward without clear evidence and rushing legal processes, the administration has attempted to bypass the checks and balances that are essential to a fair legal system. It is essential that the Supreme Court rejects these tactics and ensures that justice is not sacrificed for the sake of speed.
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