The Supreme Court handed down a brief order Monday evening disposing of one of two cases challenging Donald Trump’s Muslim ban. Though the order explicitly states that the Court expresses “no view on the merits” of the case, it is not good news for opponents of the ban.
Though Trump’s Muslim ban has been revised several times, it still contains two major parts. The first restricts travel by citizens of certain nations; the second limits refugees’ ability to enter the United States, regardless of those refugees’ nation of origin. Up to this point, the Supreme Court has shown a considerable amount of skepticism toward the first part of the ban, while largely tolerating the second part.
The Supreme Court first considered the Muslim ban in June, when it confronted two cases where lower courts halted parts of the ban — International Refugee Assistance Project v. Trump and Trump v. Hawaii. In a somewhat confusing order, the Court held that “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States” will not be subject to the ban while the Court takes more time to reach a final decision on how to resolve the case.
Lower courts have since interpreted this language to, among other things, prevent Trump from banning the grandmothers, uncles, brothers, and other close relatives of people within the United States from entering the country, and the Supreme Court has largely acquiesced in these decisions.
At the same time, lower courts also tried to place strict additional limits on the refugee ban. The Supreme Court has not been so kind to these decisions.
Monday’s order deals with just one of the two cases the Court considered in June. It declares the International Refugee Assistance Project case moot — effectively wiping any past decisions in that case from the books — while leaving the Hawaii case on the Court’s docket. Though the Court does not explain why it treats these two cases differently, it likely stems from one crucial difference between them.
The International Refugee case challenged “the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780″ — that is, it challenged the ban on foreign nationals from certain countries. Technically, section 2(c) of Executive Order No. 13,780 expired on September 24th, though it was replaced with a new travel ban impacting eight different nations.
The Supreme Court apparently believes that allowing one version of the ban to expire and replacing it with a different version of the ban is enough to moot the case. Litigants wishing to challenge the latest version of the travel ban will now need to start afresh with a new lawsuit.
The Hawaii case similarly challenged section 2(c) — but it also challenged the provisions of the ban dealing with refugees. Thus, it appears that the Court views the refugee case as still live.
However, the original refugee ban is also scheduled to expire soon, no doubt to be replaced by an altered version. When that happens, the Court seems likely to declare Hawaii moot as well, which will likely vacate previous orders preventing close relatives of people in the United States from being kept out of the country.
The Court appears to have handed Trump a reset button. By putting new versions of his ban in place after old versions expire, Trump may be able to roll the dice over and over again until he finds a version that the Court will deem acceptable.
Notably, Justice Sonia Sotomayor dissented from the Court’s Monday order. She would have dismissed “the writ of certiorari as improvidently granted” in the International Refugee case — a result that still would have removed the case from the Court’s docket, but that would have left previous orders concerning the case in place.