On October 10, 2017, the Supreme Court of the United States dismissed one of the two challenges to President Donald Trump’s March 6, 2017 Executive Order 13780. As we explained in our article on the challenges, the Supreme Court had consolidated a decision of the United States Court of Appeals for the Fourth Circuit (Trump v. IRAP) and a decision of the United States Court of Appeals for the Ninth Circuit (Trump v. Hawaii) on appeal [see article]. The Fourth Circuit decision only addressed section 2(c) of President Trump’s Executive Order 13780, which suspended the entry of nationals of six enumerated countries for a period of 90 days [see article]. The Ninth Circuit decision addressed both section 2(c) and the provisions of the Executive Order suspending the entry of certain refugees.
Section 2(c) of Executive Order 13780 lapsed on September 24, 2017. President Trump issued a Presidential Proclamation which included new travel restrictions, replacing the ones of section 2(c) [see article]. In light of the fact that the issue ruled upon the Fourth Circuit had “expired on its own terms,” the Supreme Court determined that the issue from Trump v. IRAP was moot. Accordingly, the Supreme Court vacated the judgment of the Fourth Circuit in accord with United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950) [PDF version], and remanded the case with instructions to dismiss the challenge to Executive Order 13780 as moot.
Although the Supreme Court did not reach the merits of IRAP v. Trump, its decision to vacate the judgment under Munsingwear is significant in that the Fourth Circuit decision will have no value as precedent going forward. One Justice, Sonia Sotomayor, actually dissented from the order vacating the judgment in IRAP v. Trump (name of the case in the Fourth Circuit), taking the position that she would have dismissed the writ of certiorari (the Supreme Court’s decision to grant review) as improvidently granted. Had the Court opted for Justice Sotomayor’s preferred remedy, the judgment of the Fourth Circuit would have not been vacated.
While the Supreme Court dismissed Trump v. IRAP, it left in place the second challenge to Executive 13780 deriving from the Ninth Circuit in Trump v. Hawaii. The different treatment is likely owed to the fact that the refugee provisions of Executive Order 13780 addressed in the Ninth Circuit decision have not yet expired, meaning that there is still a live issue in the case. However, it is possible that once those provisions of Executive Order 13780 expire on October 24, 2017, the Supreme Court will similarly dismiss the case as moot and vacate the judgment of the Ninth Circuit. It is worth noting that the Supreme Court has not re-scheduled oral arguments in the case that had originally been slated for October 10.
Even if the second challenge to Executive Order 13780 in Trump v. Hawaii is dismissed, the fundamental issues regarding travel restrictions may again find their way to the Supreme Court in the form of challenges to President Trump’s September 25 Presidential Proclamation. However, the Presidential Proclamation presents a different set of issues to Executive Order 13780, and it is possible that this fact in conjunction with the Supreme Court’s handling of challenges to Executive Order 13780 may lead to different results in the lower courts for challengers of President Trump’s policy.
We will continue to update the website with information regarding the legal situation surrounding President Trump’s travel restrictions.
