September 24, 2017

THE GENIUS OF THE JUSTICES:

Reminder: The "Travel Ban" Expires This Morning (Probably Ending the Case, At Least for Now) (Marty Lederman, September 24, 2017, Just Security)

What happens to the cases then?  I assume they will be moot, at least as to Section 2(c), because the challenged government action will simply no longer be operative and thus there will be no ongoing dispute about whether it should be enjoined.  Likewise, Section 6(b)'s cap of 50,000 refugees in Fiscal Year 2017 will be moot as of this coming Saturday, when that fiscal year ends.  (Sometime this week, the President will set a new quota for the Fiscal Year 2018 that begins October 1.  Reports are that it might be substantially lower than 50,000-that DHS has recommended 40,000 and that Stephen Miller has pushed for 15,000.)  The third challenged provision-the Section 6(a) moratorium on entry of refugees-expires on October 24, two weeks after the scheduled October 10 oral argument, and so that will soon be moot, too.

To be sure, the forthcoming new restrictions and conditions on entry might themselves be subject to legal challenge, including on the statutory question that has (properly) become the lead argument in the current cases, namely, whether 8 U.S.C. 1182(f) authorizes the President's actions.  Perhaps it will be appropriate to raise those challenges in the existing suits, or perhaps it will be necessary to file new cases, involving new plaintiffs-that all depends on what the terms of the new rules are, who they affect, and how.  One thing is fairly certain, however:  As I wrote back in June, the new challenges will be based on a different factual record, different national security assessments, and, presumably, different restrictions affecting different (if perhaps overlapping) sets of immigrants, families and institutions.

Only Clarence Thomas explained the ruling correctly.
Posted by at September 24, 2017 10:48 AM

  

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