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Friday, June 02, 2017

SCOTUS Symposium: When will the travel ban cases become moot?

As predicted, the United States has filed a cert petition and stay application in Trump v. IRAP, the Fourth Circuit litigation about the validity of his administration's six-country travel ban. On the schedule that the United States proposes, the case would be briefed over the summer and argued this fall at the Supreme Court.

But commentators such as Marty Lederman and Mark Tushnet have suggested that the case either will soon be moot, or could be made moot without the entry ban ever going into effect. That might be right, but I'm not so sure, and because I found it tricky I thought I'd think through the possibilities here.

Possibility One: The challenges will become moot on June 14, because the text of the order says that its effective date is March 16, and June 14 is 90 days after March 16. This assumes that the order's start date and duration are unchanged by any of the court orders against it. This is Marty's position.
Possibility Two: The order's "effective date" has been delayed by the court orders preventing it from going to effect. The order will become moot 90 days after it goes into effect, so the order will not become moot as long as it is stayed.
Possibility Three: The order's "effective date" is unchanged by the court orders, but it will not expire until it has been in effect for 90 days. The upshot is the same as in Possibility Two: The order will not become moot as long as the entry ban is stayed.

Marty argues that the answer is Possibility One:

Section 2(c) of the Order provides that “the entry into the United States of nationals of [the six designated] countries be suspended for 90 days from the effective date of this order.” And Section 14 of the Order specifically provides that the “effective date” of the Order was 12:01 a.m. on March 16. Accordingly, the E.O. itself provides that the suspension prescribed in Section 2(c) ends at 12:01 a.m. on Wednesday, June 14, whether or not any courts have enjoined its implementation in the interim.

But I am not so sure. I am inclined to think that Possibility Three and Possibility Two are both plausible, and that Possibility Three is probably the most natural interpretation of the order. Here's that reading:

The order's effective date is March 16. Section 2(c) of the order says that entry of designated nationals will "be suspended for 90 days from the effective date of this order." Normally, that would result in the order lasting for 90 days, because a 90-day suspension normally takes 90 days. But because the relevant parts of the order have been preempted by a federal court judgment, it will take longer than 90 calendar days for the 90-day suspension to run. Or to put it more simply: The order will last until it has done what it says it is going to do, namely suspend entry for 90 days.

I think Marty's reading would be much stronger if the order contained an explicit expiration date of "June 14." And it would be at least somewhat stronger, if not as much, if the order said something like "this order shall expire 90 days after its effective date." But the order doesn't quite do either of these things. Instead it announces that entry is suspended for 90 days, and so it is most natural to think that the order expires when entry has indeed been suspended for 90 days. No suspension, no expiration.

Now, Marty is also quite right to point out that the United States seems to have implicitly taken his position in at least one legal filing. But until we know more, I am not convinced that is dispositive, because it doesn't seem to be the United States' position now, and I doubt that the filing satisfies the requirements for something like judicial estoppel. I'm not positive about any of that, but it isn't obvious to me that the cases will all become moot in 12 days.

Finally, one other set of things that puzzles me, apart from the best reading of the order, is what kind of standards apply to this mootness question:

  • Should we think of this as a question of textual interpretation, analogous to interpretation of an agency regulation? And if so, does an analogy to Auer deference apply, giving the president's deference as to the meaning of his own order?
  • Is this more like a "voluntary cessation" case, where the question is whether it is "absolutely clear" that the suspension "could not reasonably be expected to recur" after June 14?
  • Or is the order itself a distraction for purposes of justiciability? Perhaps the real mootness question is whether the United States keeps asserting its willingness to block entry after June 14, order or no order. On this view, Marty's textual analysis of the order might be relevant to the lawfulness of that executive action under Section 212(f) of the INA, without controlling the justiciability question.

I suspect we'll see further briefing on this question, and perhaps the court will simply add this mootness question to the case if it hears argument in the fall.

[Cross-posted with trivial modification from The Volokh Conspiracy]

Posted by Will Baude on June 2, 2017 at 08:18 PM in 2016-17 End of Term | Permalink


I hope that you plan to write an additional comment dealing with the different argument I made.

Posted by: Mark Victor Tushnet | Jun 2, 2017 9:22:02 PM

I thought Professor Tushnet's idea was a terrific idea for all sorts of reasons (seems correct on the merits of the two stay apps, seems wise prudentially, acts as a sort of information-forcing device about a potential reissued order's justifications or potentially allows Trump to back out if the review changes anything for him or if he just wants to back out) until I saw the relevant text of the order. Where in the order does it say that suspension of entry expires once the internal review is done? Or is the claim just that the order becomes indefensible on the merits if it continues to suspend entry after review is over? Maybe that's right, but I don't see what it has to do with mootness that the order's merits become a lot wobblier in the event of some event.

Other than that, I'm curious as to whether there isn't any law about mootness of appeals of injunctions of time-limited orders, regulations or statutes, but in the absence of some definite law on that point, I'm with Possibility Three. (I don't get Possibility Two because didn't the injunctions issue a little after the effective date? Or did the order never go into effect?) If an order orders ninety days of suspension of entry, and due to an injunction you only get a week (or however many days exactly it was between issuance and injunction), I have to think the injunction tolls the order's expiration. Of course, if Trump, for example, designated some specific month, say September, as Radical Islamic Atrocity Remembrance Month, an injunction in the middle of the month wouldn't toll the order's 9/30 expiration because the point of the order is to designate that specific month, not any old 30 days of remembrance. But if an order suspends entry for ninety days just because those are the next ninety days from today, not because there's anything special about them, I'm very much with you.

Posted by: Asher Steinberg | Jun 3, 2017 12:18:02 AM

Ah, my mistake on Possibility Two; a TRO issued in Hawaii before the effective date. In that case I'm neutral as between Two and Three. The distinction doesn't seem to matter.

Posted by: Asher Steinberg | Jun 3, 2017 12:21:42 AM

Any thoughts on why Court set June 12 as deadline for filing responses to SG's requests for stay and cert.? Is the June 12 date significant if Marty is correct and EO2's entry ban ends on June 14?

Posted by: Monstrachea | Jun 3, 2017 1:33:49 AM

Thanks so much, Will. Further thoughts here:


Posted by: Marty Lederman | Jun 3, 2017 12:00:57 PM

Since when does a court enjoin a law, reg, etc. from taking effect as positive law, as opposed to enjoining the enforcement of that piece of positive law?

Posted by: Howard Wasserman | Jun 3, 2017 1:52:56 PM

Marty's mootness analysis (like all of his legal comments) is brilliant and detailed. But, in this case, I believe it is simply academic. (Nebraska Press, 427 U.S. 539, 546-547 (1976).)

The Court will (1) deny the stay requests; (2) grant cert. in both cases; (3) expedite briefing and argument; and (4) address the merits of the Establishment Clause claims.

Neither standing, ripeness, mootness, or the plenary power doctrine will prevent at least five justices from addressing the merits.

Posted by: formerscotusclerk | Jun 3, 2017 7:37:20 PM

The "purpose" section at the very top of the order says its point is to "improve the screening and vetting protocols and procedures associated with the visa-issuance process..." So, one other thing that might moot the case is if this process of improvement of protocols and procedures were completed. (Was it ever going to be completed in 90 days? Was the plan to issue extensions down the road? Who knows.)

Is it true that the Hawaii injunction -- but not the injunction at issue in the case here -- actually prevents the federal government from working on those policies and procedures? If so it seems to me that the 9th Circuit might want to think about revisiting that aspect of the injunction...

Posted by: Joey | Jun 5, 2017 12:14:07 AM

I still am confused about how the satisfaction of an order or statute's purpose can somehow moot out the legality of operative provisions of the order. Unless the order says that it or the relevant sections shall cease to be in effect when screening and vetting is "improved," however that's determined, it really can't matter what its stated purpose is for purposes of mootness. Sure, it can make it harder to defend if its purpose appears to be satisfied and yet it remains in effect, but that's a completely different question.

Posted by: Asher Steinberg | Jun 5, 2017 8:41:27 PM

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