After asking the Supreme Court to step in to rescue President Donald Trump’s travel ban executive order, the Justice Department is now asking the justices to drop the issue as moot.
Solicitor General Noel Francisco told the justices Thursday that the expiration of key provisions in Trump’s order and his recent retooling of the policy mean there is no need for a Supreme Court showdown over what critics have called the president’s “Muslim ban.”
“The United States submits that both of these appeals are now or soon will be moot,” Francisco wrote in a letter to the high court.
Trump’s ban on issuance of visas to citizens of six majority-Muslim countries expired last week and was replaced by a new policy putting varied limits on nationals from eight countries. A halt on admission of refugees remains in place, subject to court-ordered exceptions, but is set to run out Oct. 24.
The Supreme Court scrubbed highly-anticipated oral arguments that had been scheduled for next Tuesday, leading some experts to speculate that the justices hope to avoid grappling with some of the central issues in the case — including whether Trump’s polarizing campaign-trail language about Muslims can be used to invalidate his policies as president.
However, the justices still have to decide whether to vacate or leave in place two appeals court rulings that found Trump’s previous policy appeared to be illegal.
“The decisions below have the potential for seriously problematic ‘prospective effects,'” Francisco warned, quoting an earlier Supreme Court case. The 9th Circuit’s ruling that Trump lacked authority to take the actions he ordered in March runs ignores “longstanding government practice” and the 4th Circuit “ruling finding anti-Muslim animus likewise risks undermining the President’s ability to conduct foreign policy and protect national security in a critical region of the world,” the newly-minted solicitor general added.
People who challenged the travel ban in court argued in Supreme Court filings Thursday that the justices should leave those lower-court decisions in place, saying Trump indicated earlier this year in a tweet that he would like to impose a much tougher version of the travel ban.
“Even if the Court were to find that the existing controversy is or soon will be moot, it should leave the lower court decisions in place,” wrote Neal Katyal a lawyer for the State of Hawaii and a local Muslim Imam who joined together in a suit against Trump’s initial orders. “It would be profoundly inequitable to permit the Government to control the timing of the case in this manner and then to use any resulting mootness to obtain the very relief it sought on the merits: vacatur of the injunction.”
Katyal asked that arguments in the cases be returned to the court’s schedule and that a decision be rendered on the merits. Failing that, he urged the court to simply undo its earlier decision to take the cases and leave the legal status quo in place.