SCOTUS wants briefing on whether pending Travel Order case Moot, cancels oral argument
Litigation will continue one way or another, just maybe not in front of Supreme Court
When Trump rolled out a new Permanent Travel Order last night, I noted that there was a substantial question whether this rendered the pending Supreme Court case as to Trave Order No. 2 moot:
So what happens to the pending Supreme Court case? It seems that so much of the case as sought an injunction against Travel Order No. 2 is moot, meaning there’s nothing left to enjoin. I’d have to dig deeper into the pleadings to know if the entire case goes away, but it seems that much of it will.
The Supreme Court just posted an Order requesting briefing specifically on the question of mootness, and canceling the scheduled October 5 oral argument:
The parties are directed to file letter briefs addressing whether, or to what extent, the Proclamation issued on September 24, 2017, may render cases No. 16-1436 and 16-1540 moot. The parties should also address whether, or to what extent, the scheduled expiration of Sections 6(a) and 6(b) of Executive Order No. 13780 may render those aspects of case No. 16-1540 moot. The briefs, limited to 10 pages, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before noon, Thursday, October 5, 2017. The cases are removed from the oral argument calendar, pending further order of the Court.
I’m sure there will be plenty of insta-analyses of mootness. If I find any particularly interesting, I’ll add to this post.
Regardless, as mentioned in my prior post, groups like the ACLU are promising more litigation as to the new Permanent Travel Order.
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I’m curious as to the Professor’s opinion on mootness. I’d like to see the case heard and precedent set that the Persodent really does have the right to set any and all conditions on entry of foreign nationals, in anticipation of the litigation surely coming on the new travel order.
But he doesn’t, except to the extent that Congress gave him that right. So beyond the constitutional issues, which I think can be dismissed simply by citing the long-standing SCOTUS opinion that Congress has plenary power over immigration (“what part of plenary don’t you understand?”), part of the analysis has to be to look at the language of the statutes and see how much authority Congress gave him, and what limits it placed on that authority.
BrokeGopher never made the claim the the President determines his authority by himself. And the President has never claimed that he alone determines his authority in this matter either. He has always been very clear in referencing the appropriate statutes. What has been under discussion and under court proceedings is whether the President has the ability to execute under the already granted authority from the legislation with respect to limiting, controlling and managing immigration in some fashion. That is still an important issue to be clarified. And in a very broad sense it is a question of whether the Executive branch or the Legal branch has overriding authority.
That he’s been clear in referencing the appropriate statutes doesn’t mean he’s been correct. His assertion that what he’s done is within the authority Congress gave him is very much a matter for the courts to decide. But the challenges have been based not only on a narrow claim that he exceeded his Congressional mandate (which I think is at least reasonable) but broader constitutional claims that even Congress itself could not have done what he has, and therefore couldn’t delegate such authority to him. Those claims, I think, must fail unless the Court wants to overturn the precedent of more than a century that Congress has plenary power in this area.
Be hard to hear a case when no case exists to hear eh?
groups like the ACLU are promising more litigation as to the new Permanent Travel Order.
No doubt Obama’s buddy in Hawaii is working on a draft opinion right now, explaining why the new permanent order is also unconstitutional, and the inclusion of Venezuela and North Korea are just pretexts designed to hide Trump’s obvious Islamophobic intent. He’s just waiting for CAIR to find him a suitable plaintiff for the lawsuit.
Hopefully DOJ has a competent attorney lined up to defend it now, instead of the mail clerk they sent to defend the first one.
AG Sessions sucks a big one. He may be the opposite of the corrupt eric holder and loretta lynch, but he’s the opposite in terms of standing up for justice against criminals who are politically connected – like hillary clinton.
1 week. I give it ONE WEEK before they find some liberal puke in a robe willing to twist himself into a pretzel and declare the order unconstitutional.
I’ll take “Two days” if we’re running a pool.
The SCOTUS might want to duck this issue, but the libs are not going to let that happen. The same issues that they brought up concerning what constitutes close family members, as well as challenges to the extent of the President’s authority with regard to implementing immigration holds based upon national security issues still have to be addressed. They did not disappear simply because a new EO has been issued.