Yesterday, the Supreme Court dismissed a challenge to a now-expired version of President Trump’s 90-day ban on travel from six countries. The U.S. Court of Appeals for the Fourth Circuit had upheld that challenge. The Supreme Court concluded that the challenge is moot because the ban has expired. A new travel ban has superseded it.
The Court stated:
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.” (Citation omitted) 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. (Citation omitted). We express no view on the merits.
The highlighted language, to which Justice Sotomayor dissented, is the most interesting portion of the Order. As Kent Scheidegger at Crime and Consequences points out, it “means that the obnoxious Fourth Circuit opinion is wiped out as precedent.” In that opinion, the Fourth Circuit, like several district courts, improperly relied on statements made by candidate Trump to find that the travel ban is intended to discriminate on the basis of religion.
It’s true, as the Washington Post suggests, that judges, including those in the Fourth Circuit, can still rely on that court’s reasoning when the new travel ban is litigated, though it’s my understanding that the new ban is less susceptible to those objections. But courts would do so at their peril. As I suggested here, the Court’s decision last June to allow at least a limited version of the travel ban to remain in place can be viewed as a rejection of the ridiculous rationale employed by the Fourth Circuit to strike down the ban.
The Supreme Court did not decide a companion case from the Ninth Circuit that addresses two other provisions in addition to the 90-day ban. One of the provisions, which limited the number of refugees in the fiscal year that just ended, became moot on October 1. The other provision, a 120-day ban, will become moot later this month.
In all likelihood, The Supreme Court will dismiss this challenge in the same way it dismissed the one upheld by the Fourth Circuit.