One of the challenges to President Donald Trump’s March 6 executive order, often known as the “travel ban,” came to an end at the Supreme Court today, at least for now. In a brief order issued this evening, the justices sent Trump v. International Refugee Assistance Project back to the U.S. Court of Appeals for the 4th Circuit with instructions to dismiss the case as moot – that is, no longer a live controversy. The justices did not act on Trump v. Hawaii, the challenge that it had agreed to review along with Trump v. IRAP last June. The likely explanation for the different treatment of the two cases is that the Hawaii case challenges a provision of the March 6 order that is still in effect, but will expire later this month. This means that the justices could also dismiss that case, but even if they do, they are probably not done with the issues at the heart of both cases – whether the Trump administration’s restrictions on entry into the United States violate the Constitution or exceed the president’s authority. Those questions are likely to return to the court soon, perhaps even this term.
Both of the challenges were filed after the president’s March 6 order imposed a 90-day freeze on the entry into the United States by travelers from six Muslim-majority countries: Somalia, Sudan, Libya, Yemen, Syria and Iran. The Hawaii case also challenged a provision of the order that suspended the admission of refugees into the United States for 120 days. On September 24, as the 90-day period was due to expire, however, Trump issued a new proclamation that restricted travel to the United States by nationals from five of the six countries on his March 6 list (Somalia, Syria, Libya, Iran and Yemen) and added three more countries: North Korea, Venezuela and Chad. Trump explained that the federal government had, as directed in the March 6 order, evaluated the procedures that it used to vet travelers to the United States. Although the country as a whole “has improved its capability and ability to assess whether foreign nationals attempting to enter the United States pose a security or safety threat,” he indicated, travel restrictions are still necessary for these eight countries.
One day after Trump issued his proclamation, the Supreme Court removed the travel-ban cases, which had been scheduled for oral argument on October 10, from its argument calendar. The justices also instructed the two sides to file briefs, due last week, addressing whether the challenges are moot in the wake of Trump’s proclamation and the scheduled expiration of the March 6 order’s temporary suspension of the admission of refugees on October 24.
In the briefs that they filed last week, the two sides disagreed on two central questions: Whether the cases are moot and, if they are, the fate of the lower-court decisions ruling for the challengers. The federal government insisted that the two cases “are now or soon will be moot,” because the 90-day suspension on the entry of nationals from the six Muslim-majority countries has already expired (and been replaced by the September 24 proclamation), while the 120-day suspension of the admission of refugees into the United States will expire on October 24. And the government urged the court to vacate the lower courts’ decisions, so that they would not carry any legal weight in the future, describing such a step as essential to avoid “‘legal consequences’ in future cases, on critical issues including justiciability and the President’s authority to protect national security.”
The challengers countered that the disputes are not moot and should be returned to the court’s calendar for oral argument and an eventual decision on the merits. Part of the March 6 executive order remains in place, they reasoned, while the September 24 proclamation restores and even extends many other parts of that order. But even if the disputes were moot, they argued, the court should not vacate the decisions below (which would give the challengers useful precedent to use in litigation over the September 24 proclamation), because doing so would effectively reward the government for its efforts to manipulate the litigation and the timing of the order to make the disputes moot in the first place. Instead, the challengers urged, the justices should dismiss the cases as “improvidently granted” (that is, on the ground that it was a mistake for the court to have agreed to review them), an outcome that would leave the decisions below in place, and allow the two sides to renew their dispute in litigation over the newest proclamation.
Explaining that the freeze on the entry of travelers from the six countries “‘expired by its own terms’ on September 24” and therefore “no longer presents a live case or controversy,” the court agreed with the federal government that the 4th Circuit’s ruling for the challengers should be vacated. Justice Sonia Sotomayor was the only justice to note her disagreement with this outcome; she would have dismissed the case as improvidently granted.
If the justices are indeed waiting for the 120-day suspension of the refugee program to expire on October 24, there may not be any action on the Hawaii case in the Supreme Court until then. However, litigation challenging the September 24 proclamation could be well under way in the lower courts by that point. Attorneys in both Trump v. Hawaii and Trump v. IRAP have sought to amend their original complaints (here and here) to challenge the new proclamation, while another group – the Council on American-Islamic Relations – has filed its own challenge.
This post was also published on SCOTUSblog.