Supreme Court Update: Trump v. Int'l Refugee Assistance Project (16-1436)

October 13, 2017 Supreme Court Update

Greetings, Court Fans!

Although we've got no opinions to report for you this week, we do want to briefly catch up on some news out of One First Street. Earlier this week, the Justices dismissed Trump v. Int'l Refugee Assistance Project (16-1436), one of the two "travel ban" cases that the Court granted certiorari to review on the last day of OT16. The Court concluded that "the appeal no longer presents a live case or controversy" because the challenged portion of the President's March 6th Executive Order suspending entry of foreign nationals from six majority-Muslim countries "expired on its own terms on September 24, 2017." That's the date the 90-day "immigration pause" (as those sympathetic to the Order called it) elapsed without being renewed. Instead, President Trump signed a new Order imposing travel restrictions on five of the six countries identified in the March 6 Order (all but Sudan) plus three new countries (North Korea, Venezuela, and Chad), two of which are not majority-Muslim. As we noted in our last Update, on September 25, the Court dropped IRAP and its companion case, Trump v. Hawaii (16-1540), from its October argument calendar and directed the parties to file letter briefs addressing whether the events of 9/24 rendered the March 6 challenges moot. The Feds insisted that both cases were now or soon would be moot and urged the Court to vacate the decisions of the Fourth and Ninth Circuits, while the challengers urged the Court to return the cases to the argument calendar or at least dismiss the writs as improvidently granted so as to preserve the precedential value of the circuit court decisions. The Court sided with the Government and dismissed IRAP as moot, which means, under the charmingly named Munsingwear rule, that the Fourth Circuit's decision is vacated and no longer has precedential value. Justice Sotomayor dissented from the Order to the extent it vacated the Fourth Circuit's decision and would instead have dismissed the writ as improvidently granted. So the 200-odd pages of Fourth Circuit analysis on the constitutionality of the travel ban is kaput. But what about the Ninth Circuit's comparatively svelte 86 pages? The Court gave no indication of its thinking on whether Hawaii is moot, but it's fair to assume that it's just a matter of time. Unlike IRAP, Hawaii also challenged the refugee provision of the March 6 Order, which doesn't expire until October 24. Barring a surprise, we'll likely see a similar Munsingwear order right around 10/25. But that won't likely be the last we (or the Court) hear about travel bans. The plaintiffs in IRAP and Hawaii have already moved to amend their respective complaints to challenge the September 24 Order, and given the speed with which the March 6 challenges moved through the lower courts, there's a fair chance the new challenges could be before The Nine before term's end.

In other news, the Court accepted two cases of original jurisdiction for argument "in due course." As true fans know, the Supreme Court has original jurisdiction over certain types of actions, typically (as here) lawsuits between states over water rights. The cases are generally referred to special masters for trial-like proceedings, and then the Court hears oral argument on whether to adopt the special masters' recommended rulings. Florida v. Georgia (No. 220142) involves equitable apportionment of the waters of the Apalachicola-Chattahoochee-Flint River Basin, and Texas v. New Mexico and Colorado (No. 220141), concerns the apportionment of water to Rio Grande Project beneficiaries. Nail biters to be sure.

That's about all that's fit to print this week. Have a great weekend!