DOJ argues travel ban case before Supreme Court is now moot

DOJ argues travel ban case before Supreme Court is now moot
© Greg Nash

The Department of Justice (DOJ) is urging the Supreme Court to throw out the lower court rulings that blocked President Trump’s 90-day travel ban and rule that the case is now moot.

The Supreme Court canceled oral arguments that were planned for Oct. 10 in two cases challenging the president's temporary ban on travelers from six majority-Muslim countries late last month after Trump issued new targeted travel restrictions on eight countries.

The court ordered the parties in the case to submit briefs by noon on Oct. 5 arguing whether the cases are now moot.


In it’s 10-page brief, the DOJ said Trump’s Sept. 24 order restricting travel by people from Chad, North Korea, Venezuela, Iran, Libya, Syria, Yemen and Somalia confirms the challenges to the previous ban are now moot because the court has held “that a case is moot when a challenged government regulation is replaced by one that is not substantially similar.”

Newly minted Solicitor General Noel Francisco argued the new order bolsters the administration's appeals of the 9th Circuit ruling, which claimed the ban lacked "sufficient finding” of a national security risk, and the 4th Circuit ruling that it was “motivated” by a “desire to exclude Muslims from the United States.

The new order, he argued, is significantly different and “based on detailed findings regarding the national-security interests of the United States that were reached after a thorough, worldwide review and extensive consultation.”

The state of Hawaii, which is challenging the ban, however, claimed the case is in no way moot.

The state’s attorney Neal Katyal said the government has already informed the court that the president is free to revise the scope of the order whenever he wants.

"And the President himself has expressed his desire to return to a 'much tougher version' of the bans,” he said.

If the justices decide not to go forward, Katyal argued the court should dismiss the case as “improvidently granted” and allow the parties to litigate their dispute in the context of the new order.

International Refugee Assistance Project, the other challenger, also claimed the case is not moot.

“The 90-day ban on their relatives has now been converted into an indefinite ban with the potential to separate their families, and thousands of others’ for years,” the group’s attorney Omar Jadwat said in its brief. “And the religious condemnation of the earlier Executive Order is not dissipated by EO-3, which — despite some new window dressing — continues to relay a message of disparagement to the plaintiffs and other members of their faith.”

Civil rights groups have urged the court to at least hear arguments on the part of the previous order that was left in place suspending the U.S. Refugee Admission Program for 120 days.

The DOJ, however, said that suspension expires in less than three weeks on Oct. 24.

"At the end of the 120 days, the order directs that 'the Secretary of State shall resume travel of refugees into the United States under the [U.S. Refugee Admission Program]'," Francisco said.

Moot or not, experts claim 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 last month allowed the government to continue banning refugees who have formal assurances from resettlement agencies or are in the U.S. Refugee Admissions Program.