Declaring that it was taking no position on the legality of President Trump’s now-replaced order curbing entry into the U.S. of foreign nationals from six Mideast nations, the Supreme Court on Tuesday evening dismissed an Administration appeal on that question. It did so, it said, because that order had expired on September 24, when a new version was issued.
“We express no view on the merits,” the order said.
The Justices acted only on a case from Maryland, where the challenge was aimed only at the 90-day suspension of entry of travelers from nations with Muslim majority populations. A separate case, from Hawaii, remains on the court’s docket, but the Administration has asked that it, too, be dismissed because the refugee restrictions – imposed for 120 days — are to expire on October 24, when new measures are to be adopted towards refugees seeking admission.
If, as expected, both cases are off the court’s docket for decision, it will mean that the Justices would have lost – for the time being, at least — the chance to make major pronouncements on presidential power to restrict who may enter the country from other nations.
However, that broad issue, arising both under the Constitution and under federal immigration law, is almost certain to arise again, because a series of challenges have now been filed in lower courts to the revised version of the restrictions on Mideast travelers, which has now been made permanent and applies to eight nations, all but two having Muslim majority populations. Those new cases are moving on fast schedules in federal trial courts in Maryland and Hawaii.
The dismissal of the Maryland case amounted to a victory for the Administration, because its lawyers had specifically asked the court not only to dismiss its pending appeal in that case, but also to wipe out the lower federal appeals court that had found the restriction aimed at the six nations to be unconstitutional, as a form of discrimination against Muslims because of their religion.
The court, with only one Justice — Sonia Sotomayor — noting a dissent, vacated the ruling against that restriction by the U.S. Court of Appeals for the Fourth Circuit. That means that the precedent set in that case no longer exists, as a formal legal matter and thus does not amount to a source of authority that could be followed in future cases.
The Administration had asked the Justices explicitly to vacate the Fourth Circuit decision, saying that it would be used against the government in any new challenge to the president’s revised version, and that its remaining as a precedent would intrude on the president’s foreign policy powers. By contrast, the challengers had contended that the court should leave that decision intact, because the only reason there were changed circumstances was that the government had voluntarily changed its position on the restrictions it wanted to impose. Wiping out the lower court ruling, the challengers argued, would give the government a victory without even having to win its appeal to the Supreme Court.
The court’s order had only one explanation for removing the Fourth Circuit precedent, saying that was its “established practice” when a case no longer presented a live case or controversy. (Under the Constitution, the federal courts, including the Supreme Court, have no power to decide a case that no longer involves a live legal dispute – in technical terms, a dispute that becomes “moot.” The order said the Maryland case was in that category.)
Justice Sotomayor explained her dissent from the removal of the Fourth Circuit ruling by saying – in agreement with the proposal of the challengers – that the court should instead simply dismiss the government’s appeal as one that should not have been granted review.
The court had the option of adopting either suggestion about the fate of the lower court ruling, because there are precedents that would support either, so its decision to vacate that decision might be interpreted as a gesture of respect toward a co-equal branch of the federal government.
If the court later this month takes the same action on the Hawaii case, dismissing the pending government appeal and wiping out the decision in that case by the U.S. Court of Appeals for the Ninth Circuit, that would nullify a precedent that found both the restriction on Mideast travelers and the separate restriction on refugees to be illegal under federal immigration law.
When President Trump issued a new version of the restrictions last month, it applied only to the Mideast travelers. That new version is now under challenge in the same federal trial courts that had ruled against the Administration on that part of the earlier version.
The Maryland case is already set for a hearing before a judge in Greenbelt next Monday, and the judge in the Hawaii case has said he will rule without holding a hearing, after all of the legal briefs have been filed in that court by next Sunday at noon.
In both cases, the challengers are asking for an order blocking the government from enforcing the new restrictions on entry of foreign nationals from the designated Mideast countries.
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 lyldenlawnews.com.