New York Times

Supreme Court Dismisses Appeal of the March-Version of the Travel Ban

October 26. 2017

by Adam Liptak

The Supreme Court dismissed on Tuesday the last remaining appeal in a pair of cases challenging President Trump’s executive order, issued in March, that sought to limit travel to the United States.

The March order was replaced in September with broader restrictions, and they have already been blocked by federal district courts in Hawaii and Maryland. Tuesday’s dismissal mostly amounted to judicial housekeeping, clearing out challenges to the March order as the justices await eventual appeals from the one issued in September.

In its brief, unsigned disposition, the court said the March order had expired, making the case moot. “We express no view on the merits,” the court said.

But the Supreme Court did a little more than simply remove the case from its docket. It also vacated the decision under appeal, from the United States Court of Appeals for the Ninth Circuit, in San Francisco, meaning it cannot be used as a precedent.

Justice Sonia Sotomayor dissented, saying that she would have simply dismissed the case and allowed the appeals court decision to remain on the books.

The Ninth Circuit ruled in June that Mr. Trump had exceeded his statutory authority in limiting travel from six mostly Muslim countries and suspending the nation’s refugee program.

Erasing that precedent may have implications for the new challenge to the September order. Last week, in blocking the new order, Judge Derrick K. Watson, of the Federal District Court in Honolulu, relied heavily on the Ninth Circuit’s decision.

The September order, Judge Watson found, “plainly discriminates based on nationality in the manner that the Ninth Circuit has found antithetical to both” a federal immigration law and “the founding principles of this nation.” The administration may seek to revisit Judge Watson’s ruling now that the Ninth Circuit’s decision has been vacated.

In June, the Supreme Court agreed to hear appeals from both the Ninth Circuit’s decision and one from the Fourth Circuit, in Richmond, Va. The Fourth Circuit had also ruled against the administration but on different grounds, saying that the March order violated the Establishment Clause of the First Amendment in discriminating based on religion.

Over the summer, the two sides continued to tangle in court over what aspects of the March order could be enforced in the meantime. In its June order, the Supreme Court said that people with “a credible claim of a bona fide relationship with a person or entity in the United States” could continue to enter the country. In rulings issued in July and September, the justices upheld broad restrictions against refugees entering the United States but allowed grandparents and other relatives of American residents to travel here.

The administration’s issuance of the September order prompted the justices to cancel oral arguments in the two cases, which had been scheduled for Oct. 10, and to ask the parties for briefs on whether the cases were moot. The administration said they were, and it urged the court to vacate the appeals court decisions. The challengers asked the justices to hear the appeals and to leave the appeals court decisions in place if they decided to dismiss them.

On Oct. 10 — the day the arguments were to have been heard — the court dismissed the administration’s appeal from the Fourth Circuit’s ruling and vacated the appeals court’s decision. Justice Sotomayor dissented from that ruling, too, saying that she would have simply dismissed the case without wiping out the appeals court’s ruling.

The Supreme Court did not take immediate action on the Ninth Circuit’s decision on Oct. 10, presumably because the decision was broader, addressing both limits on travel from six nations and the refugee program. The September order concerned only travel restrictions, from a similar set of countries, and not the refugee program.