The Supreme Court Just Killed The Refugee Ban Challenge

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Kevin Daley Supreme Court correspondent
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The U.S. Supreme Court dismissed the second and final challenge to President Donald Trump’s executive order on refugees and migrants Tuesday, concluding that the expiration of a 120-day ban on refugee resettlement ended the controversy.

The dismissal ends a protracted round of litigating around the president’s order that was replaced in late September by a new round of travel sanctions against eight countries. Those sanctions have been challenged in separate litigation which is still ongoing.


The justices dismissed the first travel ban case Oct. 10. That case arose in Maryland and concerned the order’s 90-day ban on the entry of migrants from six countries with high instances of terrorism. The justices concluded that the ban’s expiration effectively “mooted” the case. Federal courts are only empowered to hear ongoing controversies where their action can affect an outcome. When the controversy concludes and renders further court action irrelevant, the case is considered moot and is thereafter dismissed.

The second case arose in Hawaii, and challenged both the migrant entry ban and the 120-day ban on refugee resettlement. The Court’s Oct. 10 decision left little suspense as to how the justices would dispense with the Hawaii case — as in the Maryland case, the justices said the termination of the 120-day refugee ban mooted the controversy, warranting dismissal.

A legal rule called the Munsingwear doctrine requires the vacatur of all lower court rulings in a case that is mooted while awaiting Supreme Court review. In each case, the Court wiped out lower court rulings from the 4th and 9th U.S. Circuit Courts of Appeal that concluded Trump’s order was unlawful. Justice Sonia Sotomayor dissented from the Court’s vacatur order in each case, but agreed that the challenges should be dismissed.

The order is a victory for the administration, which asked the justices to dismiss the cases in September. The vacatur of lower court rulings limiting the president’s authority is a similarly positive development for the president, who has struggled to defend his executive orders in federal courts.

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