Is Mootness How The Travel Ban Dies?

Is Mootness How The Travel Ban Dies?

Ever since the Ninth Circuit put the kibosh on Donald Trump’s initial travel ban, lawyers have been bubbling that “mootness” might allow the Supreme Court to kick the case without deciding it on its merits. Ever since the Court teed up the mootness issue in its per curiam opinion, those who oppose the ban have been hoping that mootness would lead conservative justices to throw out the travel ban without giving the executive branch blanket authority to order religious bigotry.

It’s possible that the Trump administration has been reading the tea leaves in the same way.

Technically, the travel ban expires on Sunday. The Wall Street Journal reports that the Trump administration is set to release a set of more targeted restrictions, that would replace the blanket ban. More countries would be targeted, but the restrictions would vary by country, and countries would have an opportunity to get themselves off the list.

It’s impossible to comment on the potential legality of regulations nobody has seen. But my thought is that anything more targeted towards “actions” and not simply “existence” would be less constitutionally problematic than what we have now. Also, should the administration be able to provide any “evidence” for why they’re making the restrictions they want to make — as opposed to their current standard of “they’re all probably terrorists, I mean come on, we all know terrorists come from Agrabah” — it would be constitutionally positive.

There’s almost zero chance a person like me is going to agree with the new policy, but I think we all hope that our government is able to produce a document that isn’t xenophobic and unconstitutionally bigoted on it’s face. We’ll see.

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But new regulations kind of throw the pending Supreme Court case about the current travel ban into irrelevance. Which is why “MOOTNESS” is a legal thing. Courts can only resolve “cases or controversies,” and if there’s no ban, there’s no case. An Iranian, and her American family, who was denied entry under the parts of the ban that were enforced might still have a cause of action, but the states currently with standing to challenge the ban probably don’t have a “live issue” if the ban is superseded.

If you really wanted to find out if Chief Justice John Roberts thinks Emma Lazarus was a crazy woman who had no business writing anything on a statue, fear not. It does not appear that the new regulations will touch the refugee ban. So we might still have a live issue about whether this country can discriminate against children fleeing war based on their country of origin.

And, you know, based on history, I imagine that any new executive order or presidential proclamation or mean tweet from Donald Trump restricting immigration will be nearly immediately the subject of a new lawsuit.

Stay tuned.


Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at He will resist.

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