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June 12, 2017; New York Times

Both the 9th U.S. Circuit Court of Appeals in San Francisco and the 4th Circuit court in Virginia have ruled against the reinstatement of President Trump’s revised temporary ban on travel from six predominantly Muslim nations. Each ruling took a different tack and used different reasoning to arrive at very similar conclusions. The Justice Department has appealed to the U.S. Supreme Court to review these decisions and make a final ruling, but the possibility exists that even if the Supreme Court agrees to hear this appeal, the timing of such a decision will render it moot.

The decision issued by the 9th Circuit Court on June 12, 2017, was unanimous.

The ruling affirmed most of a March decision from Judge Derrick K. Watson of the Federal District Court in Hawaii. But the appeals court narrowed the injunction issued by Judge Watson in a significant way. The appeals court said Judge Watson had erred in barring the administration from conducting internal reviews of its vetting procedures while the case moved forward.

This part of the ruling may be significant as the case moves forward for consideration by the Supreme Court.

The 9th Circuit court ruling stated that the administration did not show that blocking citizens from Iran, Libya, Somalia, Sudan, Syria, and Yemen was necessary to protect this country. They also found that the president’s order violated U.S. immigration law, which prohibits discrimination on the basis of nationality. The 4th circuit chose a different path for its ruling.

Critics of the ban have asserted that the president’s order was motivated by anti-Muslim sentiment, in violation of the Constitution’s separation of church and state. The 4th Circuit’s ruling took that question head-on, agreeing that the ban officially disfavored Islam—as evidenced by Trump’s campaign statements calling for a “total and complete shutdown” on Muslims entering the U.S.—and was thus unconstitutional.

In spite of the stays issued by these federal courts, immigration and tourism to the U.S. has slowed since the initial executive order. The issue of how many immigrants and refugees the U.S. will allow also hangs in this tangled web of the revised executive order and various court decisions.

The Trump administration has asked the Supreme Court for an expedited review of these lower court rulings. Because this is a request from the president and the U.S. Justice Department, the Supreme Court may feel more obliged to act.

Here’s the scenario:

  • On June 1, 2017, when Supreme Court agreed to consider this appeal, they asked opponents of the travel ban to submit their briefs in defense of the lower court rulings by June 12, 2017. Those briefs have been submitted.
  • On June 13th, following the ruling from the 9th Circuit, the Supreme Court agreed to a request from Acting U.S. Solicitor General Jeffrey Wall for more time to respond and make its case for reinstating the travel ban. They now have until June 21, 2017, to submit additional briefs.

What happens next? Under normal circumstances, their session would close at the end of June and there would not be hearings until the fall of 2017. These are not normal times, so there are a few options before the Court.

  • The Court could take the unusual step of holding a hearing in late June and trying to resolve this case before they leave town for the summer.
  • Or, they could do nothing. This would leave the two rulings in place, effectively permanently removing this temporary travel ban.
  • They could defer a hearing until the fall of 2017, but the hearing and subsequent decision in that time frame would have limited impact.

Any way they choose to act, the timing is critical. The executive order, in both versions, is a 90-day ban in order for the administration to conduct a review of its vetting procedures from these six predominantly Muslim countries. The president revoked the initial executive order when he issued the revised executive order in March. The 9th Circuit appeals court narrowed the ruling by Judge Watson in Hawaii. Watson’s ruling halted imposition of the order and also stopped this review of the vetting process. That review can now go forward. It is possible that this review might now resume and be completed soon. The Supreme Court could then determine that the case is moot. The 90-day period would be over, and the order would no longer be in effect.

The clock is ticking. By lifting the part of Judge Watson’s injunction that barred the review of internal vetting procedures, the 9th Circuit may have ensured that the case will be moot by the time it is argued, no matter how the 90 days are calculated.

The terms of the revised executive order state that a ban will be applied to travelers from any country that does not cooperate with U.S. officials to determine whether that country provides sufficient information about its nationals to assure “that the individual seeking the [visa, admission, or other] benefit is who the individual claims to be and is not a security or public-safety threat.” Will we then be looking for version three of the travel ban? Only time will tell.—Carole Levine