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Government, challengers file on future of travel-ban litigation (UPDATED)

Both sides of the dispute over President Donald Trump’s March 6 executive order weighed in on the future of the challenges today. In filings with the Supreme Court, the federal government urged the justices to dismiss the case as moot – that is, no longer a live dispute – while the challengers told the court that it should continue to hear the case.

Today’s filings came in response to an order issued by the court on September 25, one day after Trump issued a proclamation that restricted travel to the United States by nationals of eight countries indefinitely. The justices removed the challenges, which had been scheduled for oral argument on October 10, from their October calendar and directed the two sides to brief the question whether the disputes are now moot.

In a letter sent to the court today, U.S. Solicitor General Noel Francisco told the justices that both Trump v. Hawaii and Trump v. International Refugee Assistance Project “are now or soon will be moot”: Two provisions of the March 6 order – the 90-day suspension on the entry of nationals from six Muslim-majority countries and the cap on the number of refugees that can be admitted to the United States – have already expired, Francisco noted, and the 90-day suspension has already been replaced by the September 24 proclamation; anyone who feels that his rights have been violated by the proclamation  is free to file a new challenge. And another provision of the March 6 order, a 120-day suspension of the admission of refugees into the United States, is scheduled to expire on October 24. The next step for the court, Francisco argued, is to vacate the lower courts’ decisions, which would mean that they would not serve as legal precedent. Such a step is essential, Francisco contended, to avoid “‘legal consequences’ in future cases, on critical issues including justiciability and the President’s authority to protect national security.”

Attorneys for Hawaii and IRAP countered that the disputes are not moot, and they urged the justices to return the cases to their calendar for oral argument and an eventual decision on the merits. Part of the March 6 executive order remains in place, they pointed out, while the September 24 proclamation restores and even extends many other parts of that order. If anything, they added, the president indicated in a June 5 tweet that he wants to impose a “much tougher version” of the March 6 order in the future. Because the disputes are not moot, they continued, the court should not vacate the decisions below (which would give the challengers useful precedent to use in litigation over the September 24 proclamation). But even if the cases were moot, they contended, it would be “profoundly inequitable” to vacate the lower-court decisions in their favor because such an outcome would give the federal government exactly what it has been seeking all along, even though it was entirely the government’s actions that made the cases moot in the first place. At most, they concluded, the justices should dismiss the cases as “improvidently granted” (which would leave the decisions below in place) and allow the two sides to revive their dispute in litigation over the newest proclamation.

The justices are scheduled to meet tomorrow for their private conference and will likely consider today’s filings then. They could announce the next steps for the case as soon as tomorrow or (more likely) Tuesday morning.

(UPDATE: In a letter filed with the Supreme Court this afternoon, Neal Katyal — an attorney for the state of Hawaii — told the justices that the state plans to ask a federal district court in Hawaii for permission to file an amended complaint that challenges the September 24 proclamation. The state also plans to ask the district court to block the government from enforcing the new proclamation.)

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Government, challengers file on future of travel-ban litigation (UPDATED), SCOTUSblog (Oct. 5, 2017, 3:40 PM),