Monday, June 12, 2017

Effectively Mooting the Travel Ban Cases

Mark Tushnet

The Ninth Circuit has made it easier for the Court effectively to moot the travel ban cases, simply by denying the requested stay of the Fourth Circuit order. The Ninth Circuit has now given the administration the ninety days it said it needed to develop more stringent vetting procedures for visa applicants from the six nations covered by the ban. The ninety days expires in mid-September, before the beginning of OT 2017, and the administration didn't ask for an expedited schedule for oral argument. So, if the Court did what the administration asked, the case would be moot by the time the Court heard it.

Of course the justices might think that the Fourth Circuit was probably wrong but, to avoid mooting the case, could stay the injunction and set an expedited briefing and argument schedule. So, the Ninth Circuit's action does not itself moot the case, but it simplifies the Justices' legal-strategic calculations.

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