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.
The facts speak for themselves:
1) Trump admin issued third Muslim ban before Supreme Court could hear arguments.
2) Courts repeatedly found ban to be illegal. SCOTUS did not say they were wrong.
3) We'll be in court Monday fighting to block Muslim Ban 3.0#NoMuslimBanEver
— ACLU (@ACLU) October 11, 2017
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.DONATE
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