October 9, 2017 / 8:38 PM / 10 months ago

Should Trump DOJ get a mulligan on 4th, 9th Circuit travel ban opinions?

In letters last week to the U.S. Supreme Court, the American Civil Liberties Union and the State of Hawaii urged the justices not to allow President Trump to evade high court review of his second executive order barring travelers and refugees from several Muslim-majority countries. The Justice Department, meanwhile, submitted a letter brief arguing that the challenges by Hawaii and the ACLU are now moot: The executive order’s temporary travel ban has expired and been replaced by a new policy, the Justice Department said, and the order’s suspension on refugee admissions will soon end as well.

The ACLU and others may believe the new Trump travel directives are just as problematic as the old ones, but, according to the Justice Department, the latest policy is so substantially different that the Supreme Court should wait for lower courts to weigh in on it, rather than rushing to anticipate flaws in the new policy based on appellate decisions striking down the old one.

I’m sympathetic to the ACLU’s argument that if the justices deem the travel ban case moot just because the Trump administration has replaced the old policy with a new one, the president could “repeat that process indefinitely,” serially rescinding and reinstating legally dubious orders every time they reach the Supreme Court. But the Solicitor General seems to me to have the stronger position on the case’s mootness, or, at least, its ripeness. Whether the justices declare the case moot or dismiss the writ of certiorari as improvidently granted, I’d bet the Supreme Court puts off consideration of the travel ban.

That’s not all the Justice Department is asking, though. It also wants the justices to vacate travel ban precedent from the 4th and 9th U.S. Circuit Courts of Appeal. I’m not sure the Supreme Court will go that far.

As you surely recall, the en banc 4th Circuit enjoined the temporary travel ban in May, finding it abridged the Establishment Clause of the First Amendment because it was motivated by animus toward Muslims. A three-judge panel from the 9th Circuit affirmed an injunction against the travel and refugee bans in June, though not on constitutional grounds. The 9th Circuit found the Trump administration exceeded the authority Congress delegated to the executive branch in the Immigration and Naturalization Act.

The Justice Department, obviously, wants to erase those opinions from the books. Quite simply, wrote Solicitor General Noel Francisco, the 4th and 9th Circuit precedent interferes with presidential prerogative. “Leaving intact the lower courts’ judgments potentially could inflict serious damage on the president’s ability to protect national security, conduct foreign affairs and formulate Executive Branch policy,” the DOJ letter brief said. And unless the Supreme Court vacates the appellate holdings, DOJ said, challenges to the new policy will rely on conclusions the 4th and 9th Circuit reached about the now-replaced travel ban. DOJ contends such reliance would be improper: “The lower courts should be considering challenges to the proclamation anew based on its text, operation and findings—all of which are materially different from the (previous) order. The government respectfully submits that this is exactly a case where … vacatur is a ‘necessity.’”

DOJ’s vacatur request is based on a 1950 Supreme Court case, U.S. v. Munsingwear (340 U.S. 36), in which the court said its “established practice” in cases deemed moot is to reverse or vacate the decision below. “That procedure clears the path for future re-litigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance,” the Munsingwear opinion said. “When that procedure is followed, the rights of all parties are preserved; none is prejudiced by a decision which in the statutory scheme was only preliminary. (As it happened, the court found that the U.S. failed to preserve its right to request vacatur of a decision tossing its price-fixing case against Munsingwear because it never made the motion in the lower courts.)

The ACLU and Hawaii, which is represented at the Supreme Court by Neal Katyal of Hogan Lovells, contend that Munsingwear’s key word is “happenstance.” The court said its established procedure is to erase lower-court precedent mooted by subsequent events. But in the travel ban cases, Hawaii and the ACLU said, there was nothing serendipitous about the course of the litigation. The Trump administration, they said, took actions that led to the expiration of the temporary travel ban and the imposition of its replacement before the Supreme Court could decide the old policy’s merits. In effect, they said, the Justice Department is trying to use mootness as cover to get rid of precedent it doesn’t like.

“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,” the Hawaii brief said.

Hawaii and the ACLU drew an analogy to U.S. Bancorp Mortgage v. Bonner Mall (513 U.S. 18), a 1994 case in which U.S. Bancorp, a creditor in Bonner’s Chapter 11 bankruptcy, sought to suspend the automatic stay on litigation against the debtor. After the Supreme Court granted the mortgage company’s petition for review, the two sides reached an agreement on a plan of reorganization that included an acknowledgment that the Supreme Court case was moot. U.S. Bancorp nevertheless asked the court to vacate the lower court holding that it could not sue Bonner over the original Chapter 11 plan.

The Supreme Court said no. Vacatur is an extraordinary remedy, the court said, and parties seeking it bear a burden of showing they’re entitled to it. U.S. Bancorp basically forfeited that right when it acceded to a settlement – an action that rendered the case moot. Its “voluntary forfeiture of review constitutes a failure of equity that makes the burden decisive, whatever respondent’s share in the mooting of the case might have been.”

Justice Antonin Scalia, who wrote the court’s unanimous opinion in U.S. Bancorp, bemoaned opinions relying on dicta from the Munsingwear opinion. The Scalia quote I cited in the previous paragraph is also arguably dicta, since the holding in U.S. Bancorp was limited to cases mooted by settlement. That’s not what happened in the travel ban litigation. But the Supreme Court’s message in the handful of cases considering mootness and vacatur seems to be that a party can’t wipe out undesirable precedent by acting to moot the underlying case.

If the Supreme Court sticks to that principle, the 4th and 9th Circuit decisions on Trump’s previous travel ban should stay in place unless the justices decide to hear the cases and overturn lower court precedent on the merits. The Justice Department may get its cake – dismissal of the travel ban case at the Supreme Court – but it can’t eat it too.

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