SCOTUS Vacates Fourth Circuit Opinion in Muslim Ban 2.0

Professor Ruthann Robson, City University of New York (CUNY) School of Law

 The United States Supreme Court issued an Order in Trump v. International Refugee Assistance Project (IRAP) bring the case to a close:

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.

Recall that the en banc Fourth Circuit concluded that the plaintiffs have standing and that the plaintiffs are likely to succeed on the merits of their Establishment Clause challenge to the Executive Order. The main opinion was authored by Chief Judge Roger Gregory with six other judges joining in full.  The case had proceeded directly to en banc from Maryland District Judge Theodore Chuang's Opinion and nationwide injunction .

Most likely, a similar order disposing on Hawai'i v. Trump will follow.

However, the new "travel ban" - - - the third attempt by the Trump Administration - - - has already been challenged.