For President Trump’s so-called travel ban, October 10 was a big day after all. That did not seem a likely outcome when the Supreme Court removed the case from its docket, scrapping the oral arguments originally scheduled for Tuesday morning. That evening, though, the Court issued a brief order that gave the president an important victory — one that is clearer than the Court’s June 26 ruling, which the White House dubiously celebrated as a big win.
The Court not only dismissed as moot the challenge to the administration’s restrictions on travel to the United States by aliens from six countries. Critically, the Court also vacated lower-court rulings that had upheld injunctions against the travel restrictions.
These abusive lower-court decisions were exercises in sheer judicial fiat. They ignored Supreme Court precedents that recognize the executive’s authority over foreign affairs and homeland security, as well as the political branches’ plenary power to set the conditions under which aliens may enter and remain in the country. Moreover, these rulings relied on the breathtaking conclusion that the president’s expressed national-security considerations were a pretext, concealing the anti-Islamic bias that was said to be his true motivation — notwithstanding that the “travel ban” (which was not actually a ban, but sets of temporary restrictions) had no effect on the vast majority of Muslims worldwide and that the cited countries were selected not because they are Muslim-majority but because they had been cited in legislation signed by President Obama.
The mootness finding was no surprise. We foreshadowed it when the justices took up the matter only preliminarily at the end of last term. We noted the confirmation of our suspicions when the case was removed from the docket on the eve of the term just begun.
The Court’s June 26 ruling lifted the lower-court injunctions. The administration regarded this as a win because it allowed the travel restrictions to go into effect. The justices, however, left intact some important aspects of the lower courts’ reasoning (including that a potentially broad array of American citizens and institutions would have standing to sue, claiming vicarious harm from restrictions on the aliens).
Trump’s orders set forth two categories of restrictions, both temporary: 90 days for aliens from the cited countries (originally Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen — with Iraq subsequently dropped); 120 days for refugees globally. By allowing the administration to proceed with the restrictions, the Court set the table to avoid further grappling with the case: By the time the new term began in October, the 90-day restrictions would have lapsed and the 120-day restrictions would be on the verge of lapsing. Trump, furthermore, would probably have issued new guidance. The original restrictions would be moot.
That is what happened. On September 24, after an exacting review by the Departments of Homeland Security and State, the president issued a new proclamation overhauling the multi-country visa restrictions, which are no longer temporary. Meanwhile, the refugee restrictions will lapse in less than two weeks, by which time the administration will have issued new guidance, rendering the former restrictions moot. The Justice Department said as much in the letter-brief it filed last week, at the Court’s direction. (See letter-brief, p. 6: “The United States anticipates that . . . the government will complete its review and undertake any new actions regarding refugees by October 24.”)
The refugee restrictions will lapse in less than two weeks, by which time the administration will have issued new guidance.
This is why, for the moment, the Court’s dismissal on mootness grounds is limited to one of the two “travel ban” cases: Trump v. International Refugee Assistance Project. The case the Court has not yet dismissed, Trump v. Hawaii, includes challenges to the refugee restrictions. Expect the justices to dismiss it, too, in the next few days, once those restrictions are superseded by new guidance or lapse by their own terms.
A win on the mootness point alone would have been a hollow victory. The administration badly needed to prevail on the matter of vacating the lower-court decisions. These rulings rested on damaging legal and factual conclusions that the Justice Department wanted to challenge but that the Supreme Court, due to the mootness doctrine, would have been unable to review. This is not an unusual situation. Under Supreme Court precedent (particularly, the 1950 case of United States v. Munsingwear), the “established practice” in the mootness situation is to remand the case to the lower court with instructions that it be dismissed.
This means lower-court rulings that a higher court has not had the opportunity to review should be vacated, which “clears the path for future relitigation of the issues between the parties.” The Supreme Court is not required to follow this prudential practice, however, so opponents of the travel restrictions were beseeching the justices to leave the lower-court rulings intact — the better to exploit them in litigation against Trump’s new guidance.
For example, in ruling against the president, the Ninth Circuit had controversially held that a provision of immigration law (section 1152(a)(1)(A)) prohibits the president from singling out countries for visa restrictions, despite a separate provision (section 1182(f)) that clearly permits his doing so. (We anticipated this controversy here and here.) The Ninth Circuit further ruled, against precedent and in contravention of the statute it was purporting to construe (section 1157), that the president may not direct that fewer refugees be admitted to the U.S. than the maximum number established in consultation with Congress each fiscal year.
In addition, the same tribunal decreed that the president must provide detailed factual findings for any restrictions he imposes on alien entry into the United States, notwithstanding that the controlling statute (again, section 1182(f)) requires no such thing. The lack of such a requirement is easy to understand: Travel restrictions imposed on aliens are generally rooted in foreign-policy and national-security concerns, which means they are responsibilities of the political branches, outside the judicial ken. Thus, they are often based on highly classified information. They also target people who have no right to enter the U.S. (i.e., they affect no judicially enforceable interest). This is why Congress left this sensitive matter of national defense to the broad discretion of the president — despite the Ninth Circuit’s apparent belief that the judiciary must always have the last word on everything.
Most damaging, however, was the lower courts’ finding that Trump acted out of anti-Islamic bias. This flew in the face of the presumption of good faith that peer branches of government traditionally accord one another. It also overlooked ample evidence that the restrictions have been driven by commonsense national-security concerns — i.e., they target countries whose governments are either outright hostile to the U.S. or too dysfunctional to help with the security screening of visa applicants and refugees.
The Lawyer Left is seeking to establish what I’ve called a ‘jurisprudence of Trump’: a principle that the actions of this president must be subjected to a heightened level of judicial scrutiny.
It is not enough to observe that this patently politicized ruling could damage to president’s ability to conduct foreign policy and protect national security. Even worse, the courts have taken it as license to look behind the unambiguous, religion-neutral terms of the president’s orders. By crafting this overarching narrative of anti-Muslim bigotry, the Lawyer Left is seeking to establish what I’ve called a “jurisprudence of Trump”: a principle that the actions of this president must be subjected to a heightened level of judicial scrutiny that would not be applied to the very same actions if taken by other presidents. In essence, elements of the “nonpolitical” branch are trying to reverse the result of the 2016 vote by denying the duly elected president the powers of his office.
As the Justice Department correctly argued in its letter-brief, if the government could not appeal the lower courts’ judgment due to mootness, the rulings should not be permitted to stand as if the Supreme Court had endorsed them. Indeed, lawsuits have already been filed against Trump’s new (September 24) guidance, and the claimants were certain to argue that the lower court rulings had the effect of binding precedent.
Of course, the Court’s decision to grant the Justice Department’s request to vacate the lower court judgment does not preclude Trump’s adversaries from repeating the same arguments, nor does it prevent the lower courts from reaffirming their wayward analyses. The Supreme Court properly made clear that in dismissing the case as moot while also vacating the lower-court judgment, it was “express[ing] no view on the merits” of the lawsuit. The point was simply to return everything to square one.
Still, that this was a significant win for President Trump is manifest from the fact that the Supreme Court’s directive was not unanimous. One of The Nine, Justice Sonia Sotomayor, dissented. She maintained that the lower-court ruling should not be vacated; instead, she would just have dismissed the Supreme Court’s writ of certiorari (i.e., its acceptance of the case for review) as improvidently granted. Given that Justice Sotomayor is clearly poised to go all Ninth Circuit on the president’s effort to safeguard the country from potentially dangerous aliens, it is reassuring to know that eight other justices apparently are not.
Editor’s note: This column has been emended since it first appeared.
— Andrew C. McCarthy is a senior fellow at the National Review Institute and a contributing editor of National Review.