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Will SCOTUS Dismiss Travel Ban Cases as Moot?

By George Khoury, Esq. on October 05, 2017 | Last updated on March 21, 2019

The latest development in the travel ban executive order cases pending before the U.S. Supreme Court involves the letter briefs submitted to the Court pursuant to September 25th order. When the Court took the case off calendar, it also issued a request to the parties for briefing on the issue of mootness in light of the most recent executive order travel ban.

Clearly, the Trump administration urged the High Court to vacate the lower courts' rulings on the grounds of mootness. The opponents of the travel ban explain that the case has not been rendered moot by the latest iteration of the travel ban. No surprises there.

Expectation of Recurrence or Deterrence

Whether or not the federal government's attorneys have convinced SCOTUS that there is no possibility of the offending conduct recurring might be something we learn sooner rather than later. Since the newest travel ban takes effect on October 18, the Court could be looking to issue a ruling with all deliberate speed, or at least get the case back on calendar.

With the challenge to the newest travel ban still at the district court stage, that one is not at issue before SCOTUS. But a decision here could have a grievous impact for the newest iteration of the ban.

Fairness and the Future

Notably though, as the opponents of the travel ban explain in their briefs, it seems patently unjust to allow the White House to control the timing of the ban, and thus the court case, through subsequent executive orders. Additionally, it is the federal government that sought to appeal to the High Court, and requested a stay of the lower courts' orders. However, as noted by the ACLU in its letter brief, vacating a prior order is not appropriate when the appealing party creates the mootness.

The federal government is, reportedly, seeking to vacate the lower courts' orders striking down the prior iterations of the travel ban in order to prevent those decisions from being used against future executive action.

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