The Supreme Court Tuesday night dismissed one of the challenges to a now-expired version of President Donald Trump’s travel ban, and the legal battle over his latest efforts to ban some immigrants will need to start anew.
There were no noted dissenters from the court’s decision not to hear arguments about the travel ban, although Justice Sonia Sotomayor would have left the precedent of the U.S. Court of Appeals for the 4th Circuit’s ruling in place.
The court’s order did not mention a second ruling, by a panel of the U.S. Court of Appeals for the 9th Circuit. That is likely because that ruling also covered a temporary ban on refugees which expires later this month. The court may then also vacate that ruling.
Trump issued a new proclamation about immigrants last month, and the administration had told the court that meant there was no reason for the justices to pass judgment on the old one. It asked the lower court rulings be erased.
Opponents of the ban, who had persuaded the two appeals courts to block the executive order, said the court should continue to review the cases. Even if not, they said, the lower-court rulings should stand.
In the one-paragraph order, the court said that because Trump’s executive order “expired by its own terms” on Sept. 24, “the appeal no longer presents a ‘live case or controversy.’
“Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss as moot the challenge.”
The justices said they were not ruling on the merits of the issue.
The justices had been scheduled to hear arguments on the travel ban on Tuesday.
The cases raise complicated and far-reaching issues about the president’s powers, and many legal experts believe the court may not want to jump in unless it is necessary.
Solicitor General Noel Francisco had told the court that the new proclamation means that temporary measures under review at the Supreme Court have been superseded.
“If this court were to continue to hear these appeals, it would be asked to decide questions with no ongoing practical import,” Francisco wrote.
The previous order was challenged by the state of Hawaii and the American Civil Liberties Union as an illegal ban on Muslims. Both are challenging the new proclamation as well.
A hearing on the ACLU’s case is scheduled before a Maryland federal judge on Oct. 17.
Both challengers had told the court that it would be unfair to wipe out lower court decisions because of the government’s actions.
“Any mootness would be entirely the consequence of the government’s voluntary actions – in managing the timing of the bans, in declining to seek a swift hearing on the merits, and in rebottling its old ban in a new order,” wrote Washington lawyer Neal Katyal, representing Hawaii.
As a practical matter, it is unclear how important it would be to leave the precedents in place. The challenges to the new order will be heard by the same judges who ruled on the previous ones.
The latest travel ban could block the issuance of tens of thousands of visas each year to people who want to immigrate to the United States or to come on business or as tourists, according to a Washington Post review of State Department data.
In some ways it is more expansive than the second executive order it replaced – remaining in effect indefinitely and imposing restrictions on eight, rather than six, countries. But unlike the previous ban, the restrictions vary from place to place, and countries that increase their cooperation and information-sharing with the United States might be able to find their way off the list.
The proclamation was issued after a lengthy process in which U.S. officials reviewed vetting procedures and sought information from countries around the world. Those that were either unwilling or unable to produce the data the United States wanted ended up on the banned list.
For Syria and North Korea, the president’s proclamation blocks immigrants wanting to relocate to the United States and nonimmigrants wishing to visit in some capacity. For Iran, the proclamation blocks both immigrants and nonimmigrants, although it exempts students and those participating in a cultural exchange.
The proclamation blocks people from Chad, Libya and Yemen from coming to the United States as immigrants or on business or tourist visas, and it blocks people from Somalia from coming as immigrants. It names Venezuela, but it blocks only certain government officials and their families. Sudan, which was covered by the previous ban, was removed from the list.
(c) 2017, The Washington Post · Robert Barnes
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