Readers of the EDVA Update have followed our coverage of the challenges to President Trump’s multiple immigration Executive Orders, including challenges starting in both the Eastern District of Virginia and the District of Maryland. While President Trump received an initial loss and then a qualified win in the Eastern District, he did not fare so well in Maryland, leading to the Fourth Circuit case of International Refugee Assistance Project v. Trump. In an en banc decision, the Fourth Circuit pulled no punches, handing a sharp loss to the President in a controversial decision. The U.S. Supreme Court, however, has recently vacated the Fourth Circuit’s decision, effectively dismissing the case on mootness grounds. As a legal matter, this wipes out the Fourth Circuit’s and lower court decisions in the case.
The Supreme Court acted after calling for letter briefs from both the Government and the ACLU on whether the case still presented a live controversy after President Trump issued a new Executive Order on September 24th superseding the previously-challenged order. On October 10th, the Court sided with the Government and vacated the Fourth Circuit’s decision via an anti-climatic, short paragraph:
We granted certiorari in this case to resolve a challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780. Because that provision of the Order expired by its own terms on September 24, 2017, the appeal no longer presents a live case or controversy. Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. We express no view on the merits. Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted.
This ends the current litigation originating from the Fourth Circuit. Yet, a new suit challenging the September 24th Executive Order was filed in the District of Maryland on behalf of the Council on American-Islamic Relations and six other plaintiffs. It remains to be seen how far this case advances in the Fourth Circuit.
While the Supreme Court has halted the case coming out of the Fourth Circuit, it did not end a similar challenge originating out of Hawaii. Trump v. Hawaii remains alive at the Court, likely because this case challenged an aspect of the original Executive Order that was not raised in the Fourth Circuit litigation, namely a 120-day suspension of admission of refugees into the United States that is still in effect. That particular suspension, however, is scheduled to end on October 24th, which will likely render Trump v. Hawaii moot as well. Apparently anticipating this, the Supreme Court has removed Trump v. Hawaii from its argument calendar.
The Hawaii Plaintiffs, though, are not going quietly. In response, they sought leave from the district court to file an Amended Complaint challenging the September 24th Executive Order in the existing case. While this tactic may permit the current litigation to survive, it is likely to cause the Supreme Court to either vacate the Ninth Circuit decision in the case, or to dismiss the writ of cert as improvidently granted (“DIG-ing” the case, in SCOTUS parlance). Doing so will allow the case to survive for now, but the litigants will likely be forced to start afresh in the district court.