The Supreme Court on Monday canceled arguments scheduled for October on President Trump's travel ban, ordering the parties to instead file briefs on whether their cases are moot following the release of new restrictions on travelers a day earlier.
In an order, the court said it had removed the cases challenging Trump’s original ban from its argument calendar until further notice.
The court directed parties to file new briefs by noon on Oct. 5, as Solicitor General Noel Francisco requested late Sunday after the new restrictions were released.
Trump’s new action would restrict travel by people from eight countries — Chad, North Korea, Venezuela, Iran, Libya, Syria, Yemen and Somalia.
The new list adds North Korea, Venezuela and Chad to the targeted list and removes Sudan, which the administration said had met a set of standards for screening passengers and providing information to the United States.
Despite the additions of North Korea and Venezuela to the list, critics said the new restrictions amounted to another effort to block the entry of Muslims to the United States, something Trump threatened to do during his presidential campaign. Cases brought against Trump’s earlier actions used Trump’s own words to argue he was restricting travel by people based on their religion.
“This new Muslim Ban is another attempt to hide the Executive Order’s discriminatory purpose,” Zahra Billoo, a representative of the Council on American-Islamic Relations (CAIR), said in a statement.
Other experts said the new restrictions are based on a broader review that could give added heft to arguments in a court of law.
“The argument that this is a ruse for a Muslim ban I don’t think is credible anymore,” said Josh Blackman, an associate professor at the South Texas College of Law in Houston.
“They have put some thought into this. It’s not like the first executive order that looked like it was drafted on a cocktail napkin. This was done after a very thorough vetting,” Blackman said.
He said the Supreme Court should vacate the lower rulings on the administration’s earlier travel ban and send the cases back to district courts for a weighing of the new language.
Court watchers say the justices may already have been looking for an off ramp from the divisive, political fight.
“I don’t think Chief Justice [John] Roberts is in any hurry to do anything with the president’s executive power if he doesn’t have to,” said Carl Tobias, a professor at the University of Richmond School of Law.
“I think this a delicate area that involves the president, Congress, national security and civil liberties. If it’s not necessary that the court decide this, why do it?” he said.
The new restrictions would leave in place a suspension of the U.S. refugee resettlement program that the administration is also reviewing. The 120-day suspension concludes at the end of next month.
Human Rights First is pushing the court to proceed with the refugee portion of the case.
“Though the administration released a new order, it only builds on the travel ban and does not address the cruel and unnecessary refugee ban, which was not impacted by last night’s proclamation,” Hardy Vieux, the groups legal director, said in a statement.
“The refugee ban has upended the lives of thousands of vulnerable individuals. Many of these at-risk refugees, who have fled persecution and still face grave risk, look to the United States as their last hope for protection.”
It’s not clear, however, that the Supreme Court would hear arguments on the refugee program alone.
“It could say this is fast moving and more reasonable, and let’s send it back to the lower courts to think about it more,” Sam Erman, an associate professor of law at the University of Southern California Gould School of Law, said of the refugee ban.
John Malcolm, vice president for the Institute for Constitutional Government at the conservative Heritage Foundation, said Monday’s court order signals the court is seriously considering whether the case is now moot.
“Time is running out and they take mootness seriously and don’t want to be rushed,” he said.
Moot or not, experts say the government has already gotten most of what it wanted.
In June, the Supreme Court said the government could reinstate the ban after it was blocked by lower courts, but carved out an exemption for people who have a “bona fide” relationship with a person or entity in the U.S.
And it won again earlier this month when the Supreme Court agreed to lift court ordered restrictions that prevented the government from banning refugees who have formal assurances from resettlement agencies or are in the U.S. Refugee Admissions Program.
In a statement Monday, the American Civil Liberties Union (ACLU), which brought one of the two cases challenging the ban, said it was not surprised by the court's action given the government's decision to issue the new restrictions.
“Both sides will address the implications of that new ban order for the existing case in written submissions to the court,” said Omar Jadwat, director of the group's Immigrants’ Rights Project. “The ban has been repeatedly held unconstitutional and illegal by the courts and those decisions remain in place today.”
Tobias said what happens in court all depends on what's argued in the briefs and if the justices believe they can take the next step without having oral arguments.
“If they find the case moot, that could end it,” he said.
While the court decides what to do, Ian Prior, a spokesman for the Department of Justice, said the agency will “continue to vigorously enforce the president’s lawful order.”