Washington
Not surprisingly, opponents of the bans, who had persuaded two courts of appeals to block them, said the court should continue to review the cases. Even if not, they said, the lower court rulings should stand.
The justices asked for the new briefing about whether the issue was moot since President Donald Trump announced a replacement travel ban last month. The court canceled an oral argument on the issue scheduled for next week.
Solicitor General Noel Francisco said the new proclamation means that the temporary measures under review at the Supreme Court have been superceded.
“If this court were to continue to hear these appeals, it would be asked to decide questions with no ongoing practical import,” Francisco wrote.
He also said two rulings that went against Trump — by a panel of the U.S. Court of Appeals for the 9th Circuit and the U.S. Court of Appeals for the 4th Circuit — should be vacated.
“If allowed to stand, the lower courts’ decisions threaten to undermine the executive’s ability to deal with sensitive foreign-policy issues in strategically important regions of the world,” Francisco wrote. “The court should not permit that unnecessary consequence, especially when the rulings below are preliminary injunctions litigated on a highly expedited basis.”
The previous bans were challenged by the state of Hawaii and the American Civil Liberties Union as illegal bans on Muslims. Hawaii and the ACLU were representing those with family members affected by the ban.
“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,” wrote ACLU lawyer Omar Jadwat, asking the court to keep the cases alive.
“And the religious condemnation of the earlier Executive Order is not dissipated by (the new one), which — despite some new window dressing — continues to relay a message of disparagement to the plaintiffs and other members of their faith.”
But both the ACLU’s submission and the one from Hawaii seemed to acknowledge the possibility that the court would pass on reviewing the old executive orders.
“The court will soon have another opportunity to determine the legality of the president’s actions in the context of the new order” because legal challenges to it are underway, wrote Washington lawyer Neal Katyal, representing Hawaii.
