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SCOTUS dismisses 4th Circuit Travel Order case as moot, vacates Maryland District Court judgment

SCOTUS dismisses 4th Circuit Travel Order case as moot, vacates Maryland District Court judgment

Expect dismissal of 9th Circuit/Hawaii case later this month.

We previously wrote how the U.S. Supreme Court was likely to dismiss the two Travel Order cases before it, one from the 4th Circuit (via Maryland District Court) and one from the 9th Circuit (via Hawaii District Court) on grounds of mootness. Both of those cases went against Trump.

The 4th Circuit case became moot in late September because the Travel Order at issue (Travel Order No. 2) expired. In this context, mootness means there no longer is an actual case and controversy (a constitutional requirement for federal courts) to be decided by the court, because the Travel Order expired by its own terms.

The plaintiffs wanted the Court to keep and decide the case, nonetheless. The Trump administration wanted the case dismissed.

The Supreme Court last night entered an Order dismissing the 4th Circuit case (emphasis added):

We granted certiorari in this case to resolve a challenge to “the temporary suspension of entry of aliens abroad under Section
2(c) of Executive Order No. 13,780.” Because that provision of the Order “expired by its own terms” on September 24, 2017, the appeal no longer presents a “live case or controversy.” Burke v. Barnes, 479 U. S. 361, 363 (1987). 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 to Executive Order No. 13,780. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). We express no view on the merits.

Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted.

The highlighted language vacating the lower court judgment and dismissing the challenge is legally significant, because it renders the purported legal reasoning of the Hawaii District Court as approved by the 4th Circuit a legal nullity. Nonetheless, expect groups litigating Trump’s most recent (Third) Travel Order to cite the Maryland and 4th Circuit opinions.

After all, the 4th Circuit opinion was dripping with contempt for Trump (emphasis added):

“The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866), remains “a law for rulers and people, equally in war and in peace.” And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation. Therefore, for the reasons that follow, we affirm in substantial part the district court’s issuance of a nationwide preliminary injunction as to Section 2(c) of the challenged Executive Order.”

The 9th Circuit case was not addressed in this Supreme Court order, likely because it contains an element (the refugee prohibition) that does not expire until later this month. Expect that case also to be dismissed.

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Comments

We have unfortunately entered an era where the ‘rule of law’ has come to mean ‘judge shop until you can find a loony liberal in a robe that will twist themselves into a pretzel to take your side’.

Respect and approval for the higher courts and judges in general has dropped SIGNIFICANTLY in the last 15 years, and I don’t see that changing any time soon.

Yep. As predicted. The rumors of the law’s demise are greatly…hysterical.

Pity it takes to highest court in the land to actually uphold the law.

Remember the 4th circuits opinion written above the next time you are on a jury and the judge orders you to follow the law with regards to the case before you. The 4th and 9th circuits certainly did not.

I’m just an interested layman, but could somebody tell me why there are no negative consequences for the lower courts who overstep or otherwise offer up decisions that do nothing but clog things up. It seems to me that there ought to be some accountability here when lower courts let their personal views enter the debate.

My guess is that these folks KNOW that their ruling won’t stand, and they are simply doing what they do to obfuscate. Why are they allowed to get away with it time and time again? Where are the checks and balances?

    Eddie Baby in reply to tiger66. | October 11, 2017 at 10:47 am

    Judicial accountability? You are a funny guy.
    The last time I saw a court held accountable for their unlawful actions was back in the eighties when Rose Bird and her minions got booted off the California Supreme Court.

    CZ75Compact in reply to tiger66. | October 11, 2017 at 2:46 pm

    Revoke judicial immunity. Judges need to live under the laws the rest of us do, and be held accountable for their acts of incompetence and fraud.

… in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another.

Blah, blah, blah. I liked “emanations of penumbras” much better. That at least had an obtuse elegance which is seriously lacking in this later flailing-about.

And as we read, justices on the Ninth and Fourth circuit court are frantically typing away on cookie-cutter responses to injunctions against the new travel order that have not been filed yet.

“Your Honor, we ask that–”

“Granted. Here’s the decision. Please pass these copies to the reporters in the courtroom.”

While this is convenient for the SCOTUS, it essentially means that the last five months simply do not exist as far as the question of the scope of the President’s power to regulate immigration is concerned. We are, essentially, back as square one. Now we can see these lower courts reissue their previous rulings and sit around for another four months until the Scotus deigns to address the controversy again.

The constitutional requirement to declare a case moot, once it no longer applies to the plaintiffs, was largely thrown out in Roe v Wade, where the court decided that the stance of the State of Texas vis-a-vis abortion was relevant to others, even though it no longer applied to Roe once she was no longer pregnant. The same applies here. Though the initial EO has since terminated, and is no longer applicable, the current EO is similar and the arguments against the President’s power to enforce such an order still exist.

4th armored div | October 11, 2017 at 2:25 pm

it seems to me that unless these activist judges are held to account, that this is the case of overwhelming our ability to live in a free society.
with the exception of SCOTUS, all judges need to be subject to electoral judgement – i.e. 10 year terms with re=election of the population covered by these judges.
as for SCOTUS, they need to be reconfirmed every 10 years, else,
having a senile Judge remain is dangerous to our society.

having an imperial judiciary leads to a loss of equal protection ,

Had hillary clinton been elected, there would have been a ‘high court,’ alright: but high, in the mold of Roland Freisler’s court:

https://www.youtube.com/watch?v=ZOLdLdSwe2A

Freisler and his court were later vaporized by an allied bomb – much like America vaporized hillary clinton’s delusions of corrupt grandeur.

Mac is correct. By the current Court’s reasoning, nothing is unconstitutional so long as it doesn’t last as long as SCOTUS takes to consider and decide it. The Roberts court is very good at supporting liberalism while pretending to be conservative.

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