Friday, June 02, 2017

Mootness and the travel ban

Mark Tushnet

With the government's action on Thursday night -- petition for certiorari to the Fourth Circuit, motion to stay the Fourth Circuit injunction, and motion to stay the Hawaii district court injunction -- the picture has been substantially clarified, The easy out for the Court: Grant the stay of the Hawaii injunction, thereby allowing the government to proceed with its internal review of screening procedures, deny the stay of the Fourth Circuit injunction, and do whatever the heck they want about the petition for certiorari (deal with it in the ordinary course, deal with it an an expedited basis, and on either timetable, grant or deny it) but set the argument for the fall. The case will then almost certianly be moot by the time it's argued, and all that would be left would be to clean things up, presumably by directing that whatever injunctions are still in effect should be vacated.

My sense is that there's a lot of overthinking about this in the anti-ban advocacy community. The basic point here is that staying the Hawaii injunction would be no big deal, whereas staying the Fourth Circuit injunction would be.

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