Wednesday, October 25, 2017
Amy Howe on SCOTUSBlog reports that the Supreme Court formally removed the second of two challenges to President Donald Trump’s March 6 executive order from its docket yesterday. The March 6 order, sometimes known as the “travel ban,” had blocked travel to the United States by nationals of six Muslim-majority countries and suspended the admission of refugees into the United States. The Supreme Court had scheduled the challenges to the March 6 order – one of which hailed from the U.S. Court of Appeals for the 4th Circuit, and the other from the U.S. Court of Appeals for the 9th Circuit – for oral argument on October 10. However, the Supreme Court removed both challenges from its argument calendar after the president issued a new proclamation in late September. The justices dismissed the 4th Circuit challenge, which dealt only with the freeze on the admission of nationals from the six Muslim-majority countries, earlier this month, after the freeze expired. The latest order dismissed the case from the 9th Circuit; that case also challenged the 120-day suspension on the admission of refugees, which expired today. The brief order, like the order dismissing the 4th Circuit challenge, sent the case back to the 9th Circuit with instructions to dismiss it as moot. As she had in the order dismissing the 4th Circuit case, Justice Sonia Sotomayor indicated that she would have left the 9th Circuit’s ruling against the federal government in place, and she would have dismissed the case as improvidently granted, rather than moot.
Although today’s action removes the cases challenging the president’s March 6 order from the Supreme Court’s docket, challenges to the president’s new proclamation could be back before the justices soon: Federal trial courts in Hawaii and Maryland have already ruled against the government in the new challenges.
Here is the Court's order:
We granted certiorari in this case to resolve a challenge to the temporary suspension of entry of aliens and refugees under
Section 2(c) and Section 6 of Executive Order No. 13,780. Because those provisions of the Order have “expired by [their] own terms,” 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 Ninth 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.