The fate of President Trump’s prohibition on visitors to the U.S. from six majority-Muslim countries may turn on whether the Supreme Court agrees to hear the case at all.
The period of 90 days for the so-called travel ban that took effect in March has expired, the challengers contend in papers filed this week with the court. Thus, the matter is moot, say the challengers, who add it would be premature for the justices to weigh in until the lower courts have resolved the matter on the merits.
Hearing the appeal “would effectively grant the government a victory on the merits,” the State of Hawaii writes in its brief. “Absent the injunction [from the lower courts], the government will have imposed the full travel ban and most of the refugee ban before the October Term begins.”
The Fourth Circuit ruled last month that the travel ban likely violates the Establishment Clause, based on statements by the president that he aimed to keep Muslims out of the U.S. The Ninth Circuit held last week that the president has failed to supply evidence of a threat to national security sufficient to justify the exclusion of 180 million people based on their nationality.
According to Hawaii, the Fourth Circuit correctly considered statements by candidate Trump describing Muslim refugees as a threat in determining “that the stated [national security] rationale is a sham.”
To conclude otherwise would be to authorize presidents to enact policies intended to further unconstitutional aims “by cloaking the policy in neutral terms and a national security rationale,” says Hawaii. “That is not the law.”
The parties have until Wednesday to file briefs addressing the Ninth Circuit’s ruling