Symposium: The mootness games

Leah Litman is an assistant professor at the University of California, Irvine School of Law. She signed an amicus brief that opposed the government’s stay applications to the Supreme Court.

Next term, the Supreme Court will hear argument in Trump v. International Refugee Assistance Project/Trump v. Hawaii. But it’s likely we’ve already heard the court’s last and only words (which were no words at all) on the merits. That’s because the case will likely be moot by the time the court hears argument in the fall, or reaches a decision. The most interesting part of the case may be how much the organizations that are involved in the case, and particularly the government, push the court to say otherwise, and to say something on the merits.

The mootness issue arises because of the temporary nature of the executive order that is at the heart of the case. The entry ban that the plaintiffs have challenged lasts a mere 90 days from its effective date, and the suspension of the refugee program that the Hawaii plaintiffs have challenged lasts a mere 120 days from its effective date. The cap on the refugee program, which the Hawaii plaintiffs also challenged, applies to fiscal year 2017, which ends on September 30, 2017.

The order’s effective date, and the effective dates of the entry ban as well as the suspension of the refugee program, have changed over time. When the president signed the first order back in January, the order’s effective date was the date the order was signed, January 27, 2017. When the president signed the second order (the subject of these cases) on March 6, 2017, the order provided that its effective date was March 16, 2017.

If nothing else had happened, the challenge to the entry ban (and thus the entire Trump v. IRAP case, which involves only a challenge to the entry ban) likely would have become moot on June 14, 2017 – 90 days after March 16, 2017. The challenge to the refugee suspension (and thus most of the Trump v. Hawaii case) would have become moot this week – 120 days after March 16, 2017. All that would have been left of Trump v. Hawaii would have been a challenge to the cap on the refugee program for fiscal year 2017, so that case would have become moot on September 30, 2017, at the end of the fiscal year.

But something else did happen. While the court was deciding whether to hear the case, the president issued a “clarifying memorandum,” which made the effective date of each provision in the order the date on which the provision was allowed to go into effect. The memorandum declared “the effective date of each enjoined provision to be the date and time at which the referenced injunctions are lifted or stayed with respect to that provision.”

On June 26, the Supreme Court partially lifted the injunctions against the entry ban, the suspension of the refugee program, and the cap on refugees. The court’s ruling allowed the executive order’s provisions to go into effect as applied to persons who “have no connection to the United States at all” or “who lack[] any connection to this country.” But the court denied the government’s request for a stay as to persons who have a credible claim of a bona fide relationship with a person or entity in the United States, thus preserving the injunctions that prevent enforcement of the executive order against those people.

So now the mootness question is whether Trump v. IRAP becomes moot on September 24, 90 days after the entry ban was partially allowed to go into effect, and whether Trump v. Hawaii becomes moot on October 23, 120 days after the suspension of the refugee program was partially allowed to go into effect. There’s a very good argument that the cases will become moot as of October 23. The president’s clarifying memorandum says that the effective date of each provision is when the referenced injunctions are lifted or stayed with respect to that provision, and that happened on June 26, when the court’s order “grant[ed] the stay applications in part.”

Other pieces of the executive order confirm an interpretation of the order that would mean the cases are moot as of October 23. The stated purpose of both the entry ban and the suspension of the refugee program is to allow the government to review existing entry and refugee admission procedures, and to determine whether any changes in those procedures are warranted. There are reasonable arguments that this stated purpose is paper thin and does not justify any ban, or any suspension. But whatever one thinks about that as a reason for the 90-day entry ban and 120-day suspension of the refugee program, it is certainly not a reason for an entry ban and suspension of the refugee program after the government has completed its review of its own procedures. The government may change its policies based on what it finds in the course of its review, but any policies that postdate the completion of the government’s internal review would have to be justified on the basis of what the review found, not on the need to complete the review itself. Thus, the order doesn’t provide for any entry ban or any suspension of the refugee program once the government has completed its review of existing procedures.

It will be interesting to see how and when the Supreme Court raises this mootness issue. When the court granted certiorari in these cases, it added the following question: “(4) whether the challenges to Section 2(c) [the entry ban] became moot on June 14, 2017.” The parties have thus already been asked to brief mootness, but not the mootness that will have resulted from the court’s partial lifting of the injunctions and the expiration of the order’s newly stated duration for both the entry ban and the suspension of the refugee program.

To my mind, the only question is when the court will ask about that mootness issue, and whether it will do so in an order requesting separate briefing, at argument, or in an order requesting supplemental briefing after argument. In the order granting certiorari and granting (in part) the stay applications, the court acknowledged that it expected the government to have completed its review of existing entry and refugee procedures by the time the court hears the case, stating that “we fully expect that the relief we grant today will permit the Executive to conclude its internal work and provide adequate notice to foreign governments within the 90-day life of §2(c).”

It will be even more interesting to see how much the government pushes the court to decide the case, and whether the government issues any subsequent clarifying memoranda to try to prevent the case from becoming moot. For example, the president could conceivably issue another clarifying memorandum that says each provision of the order can have multiple effective dates if the provisions are allowed to go into effect in part. The president could state that the effective date of the entry ban as it applies to persons without a connection to the United States was June 26, and that the effective date of the entry ban as it applies to persons who have a connection to the United States is whatever date the court holds that the ban is lawful, if it ever does so.

Before the government implemented the Supreme Court’s modified injunction, I would have said that there was no chance that the Department of Justice would go along with a clarifying memorandum that attempted to extend the entry ban and the suspension of the refugee program in that way. The result of such a move would be an entry ban, or a suspension of the refugee program, after the government has completed its review of existing procedures, even though the purported need for the ban and the suspension was to allow the government to conduct that review. It would also result in an entry ban or a suspension of the refugee program that would apply to the group for whom the government’s stated “national security” justifications for exclusion are weakest — those persons with “bona fide relationships” to persons or entities in the United States.

But as I said, that was before the government implemented the Supreme Court’s modified injunction against the provisions in a way that does not sensibly interpret the court’s order, and before DOJ defended the administration’s decision to do so. For example, the government maintains that grandparents of persons in the United States, or grandchildren of persons in the United States, categorically do not have “bona fide relationships with persons in the United States.” (Note that even if the Supreme Court were to weigh in on the scope of the modified injunctions against the order’s provisions, the court would not have to speak to the merits of the underlying challenges. The last time the court modified the scope of the injunctions, it did not say anything explicit about the merits.)

If DOJ is willing to defend and enable that interpretation of the court’s modified injunction, which has been widely panned by, well, every reasonable person who has examined it, why would DOJ not enable and defend a senseless interpretation of the effective date(s) and duration of the entry ban and suspension of the refugee program? I will be watching the cases to see whether DOJ does so.