The Trump administration has asked the US Supreme Court to get rid of lower court orders that blocked enforcement of the president's now-expired second travel ban executive order.
Contested sections of the earlier immigration executive order expired in late September, and President Donald Trump simultaneously signed a new set of travel restrictions, prompting the US Supreme Court to ask what should happen in the cases already before the justices. Lawyers for the Justice Department and the challengers filed their responses on Thursday.
The Justice Department contends the cases before the Supreme Court are now moot, and argues that lower court rulings against the administration should not be allowed to stand. The challengers counter that the cases aren't moot, but say that if the Supreme Court doesn't want to hear them now in light of the president's new directive, the justices should dismiss the appeal but leave the lower court opinions in place.
The previous 90-day ban on travel from six majority Muslim nations, Iran, Libya, Somalia, Sudan, Syria, and Yemen, has expired, as has an earlier cap on US refugee admissions. A suspension of the US refugee program is set to expire on Oct. 24. On Sept. 24, Trump signed new travel restrictions for nationals of Chad, Iran, Libya, North Korea, Somalia, Syria, and Yemen, as well as certain Venezuelan government officials and their families.
US Solicitor General Noel Francisco wrote in the government's letter on Thursday that orders entered by lower court judges blocking enforcement of the second travel ban and refugee cap are "now without effect." The suspension of the refugee program would soon expire, he said, and the administration planned to finish its review of the program and take any new actions by Oct. 24.
Since the appeals will become moot before there's a final ruling, Francisco wrote, the justices should vacate the decisions entered by lower courts. Two federal appeals court earlier this year upheld nationwide injunctions on sections of the executive order that Trump signed in March. If the lower court decisions stand, the legal conclusions reached by these courts would still be precedent in their judicial regions and could be cited in future cases.
Allowing those decisions to remain in place would "undermine the Executive’s ability to deal with sensitive foreign-policy issues in strategically important regions of the world," Francisco argued.
He wrote: "Although some parts of the lower courts’ opinions have been overtaken by events, other parts of the opinions potentially remain 'legally consequential.'"
Lawyers for the two sets of travel ban challengers — the state of Hawaii and nonprofits and individuals — wrote that the earlier cases are not moot because the government hadn't shown that the allegedly unlawful behavior that prompted the court challenges won't happen again. They pointed to the latest presidential directive, which bans travel from many of the same countries covered under the earlier executive order.
If the justices do not want to hear the cases now in light of the new directive, however, the challengers' lawyers recommended that the court dismiss the current petition and wait for challenges to the new set of restrictions to work their way through the courts again. Two legal challenges have already been filed in response to the president's Sept. 24 proclamation.
Even if the court did conclude that the earlier cases are moot, the challengers urged the court not to vacate the lower court decisions. It would be "profoundly inequitable" for the government to control the timing of the cases — setting expiration dates for the second executive order and not seeking expedited review by the Supreme Court — in order to make them moot and then get the lower court decisions tossed out, Neal Katyal, one of the lead attorneys for the challengers, wrote.