Constitution Daily

Smart conversation from the National Constitution Center

A difficult new question on Trump and immigration

October 5, 2017 by Lyle Denniston


The opposing sides in the historic controversy over President Trump’s limits on foreign travelers’ entry into the U.S. handed the Supreme Court on Thursday a difficult new question: will the defeats the Administration already suffered in this fight in lower courts remain, or be wiped off the books?

That is a question the Justices probably will take up when they meet in a private conference Friday, to discuss new filings just made in two pending cases, putting the fate of those cases in doubt.

Two groups of challengers to the President’s March 6 executive order restricting immigratio argued that thne Justices should go ahead and decide the cases, but if it passes them up because the President has now replaced them with a new policy, it should not disturb two appeals courts’ rulings that found the March 6 version to be invalid under immigration law or under the Constitution.

It was the Administration’s own actions that changed the circumstances, and it should not now be allowed to gain what it has been seeking – nullifying the lower court rulings against it – even without a ruling by the Justices on legality, the groups involved in the cases from Hawaii and Maryland contended.

The Administration countered that the President did not change the policy to avoid a ruling on its legality, but did so to replace only temporary measures that have now expired or soon will; the expirations will make the pending cases “moot” – legally dead, according to the government filing.

The appeals courts’ rulings against it, that new document contended, would have harmful effects on the President’s ability to conduct foreign affairs if they are left on the books, and those decisions if left intact would now be used by the challengers to buttress a new round of lawsuits against the new version.   The new version should only be weighed in fresh lawsuits, it added.

Aside from their dispute over the fate of the lower court rulings issued up to now, the opposing sides in the controversy were sharply at odds over whether the President had made any real change in his approach to foreign travelers between the March 6 version and the new approach announced on September 24.  The challengers said the new approach has some or all of the same legal defects as the first, but the Administration said the new “proclamation” is very different and has a stronger legal foundation.

The Supreme Court will not decide, at this point, who is right about whether the two versions differ or whether either one is invalid under immigration law or the Constitution.  At this point, the Justices are faced only with the question of whether to go ahead and review the legality question and the separate but linked question of whether to wipe out the lower court decisions that gave rise to that review.

Three new filings – two by the challengers and one by the Administration – offered a variety of dueling legal theories to try to persuade the Justices’ on the disposition of the cases at this point.

The Justices had been planning since last June to review the legality of the President’s March 6 order, and had scheduled a hearing on that question, set for next week – October 10.   However, on September 25, the day after the White House announced the new – and permanent – restrictions on entry by foreign travelers, the Supreme Court cancelled the October 10 hearing and asked both sides to submit new letters offering their views on the impact of the new government approach on the pending cases.   Thursday’s filings were the responses to that order.

The President’s March 6 version had contained two main provisions – a 90-day suspension on entry of any foreign nationals from six Mideast nations with Muslim majorities, and a 120-day suspension on entry of refugees from anywhere in the world.   As suspensions, the orders were temporary to give the Administration time to analyze the effectiveness of “vetting” procedures before allowing entry of foreign nationals and refugees covered by the March 6 order.

Two separate appeals courts ruled that one or both of those suspensions were invalid, under either immigrations laws or the Constitution.  The constitutional ruling was based on the conclusion that the restrictions on travelers from Mideast nations were intended to be a “Muslim ban,” discriminating on the basis of religion.

The 90-day period for government review of policy for travelers from the designated Mideast nations ran out on September 24, and was replaced that day by a new, permanent ban on entry – imposed on foreign nationals from five of those six original nations, plus three more nations, one of which has a Muslim majority.

The 120-day period for review of refugee entrances is due to run out on October 24, but the Administration indicated in its new filing that it will be putting new refugee provisions into effect by that date.  The new presidential action unveiled on September 24 did not deal with the refugee issue, but only with travelers from the newly designated eight targeted nations.

In technical legal terms, the new filings were focused primarily on the issue of mootness.  Under the Constitution, the federal courts – including the Supreme Court – have authority only to decide actual, or “live,” legal disputes; that means that the cases, throughout their move through the courts, must have real substance with a claim of actual injury met by a claim that no harm was done.

The challengers’ new filings relied heavily upon one mootness doctrine – that one party in a dispute is not entitled to scuttle the dispute, just by changing the behavior that led to the fight in the first place.  That doctrine is designed to keep a party in the case from manipulating the court system by trying to frustrate review of a controversy that was a real one up to that point.  Using that approach, the challengers contended that their protest to the March 6 order is ongoing, and, in any event, their victories in lower courts so far must stand.

The Administration, by contrast, relied heavily upon a different mootness doctrine – that when a lawsuit loses its substance by the “vagaries of circumstance,” there is nothing real left to be decided, so going ahead to rule on it would be an advisory opinion – flatly barred to the federal courts by the Constitution,

The Justices over the summer took a series of separate, and temporary steps, dealing with current questions about enforcing the March 6 order while awaiting the Supreme Court’s planned review in their new term of the legality of that order.   Those temporary orders basically allowed the Administration to enforce the refugee entry suspicion, but allowed for some entry of foreign nationals from the Mideast nations.

In issuing those orders, the court was sometimes divided 6-to-3.

It would take the vote of five of the nine Justices to dispose of the question of mootness, and the question of what is to happen to the lower court opinions that went against the Administration.

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on


Sign up for our email newsletter