Should the Fourth Circuit Travel Ban Ruling Have Been Vacated?

By George Khoury, Esq. on October 12, 2017 | Last updated on March 21, 2019

The Fourth Circuit's ruling striking down President Trump's second travel ban, EO 13,780, was vacated by the Supreme Court this week. In issuing this ruling, it was ordered that the challenge to the injunction be remanded to the Fourth Circuit Court and dismissed as moot. The High Court explained that because the EO's September 24 expiration date had passed, the appeal no longer presented a live case or controversy, and as such, was moot.

Interestingly though, Justice Sonya Sotomayor dissented. In short, she disagreed with vacating and remanding with instructions to dismiss as moot. Rather, Justice Sotomayor asserts that the High Court should have dismissed the writ of certiorari as "improvidently granted."

Vacating Judgment

The big deal with vacating the Fourth Circuit ruling in the Trump v. International Refugee Assistance case is that precedential effect of the ruling upholding the injunction stopping the travel ban has now been tarnished. Sure, practitioners can add the parenthetical -- vacated on other grounds-- next to the case cite, but it doesn't change the fact that the judgment is no longer considered precedent setting. It may be persuasive and cited as guidance, but not as binding precedent.

This matters big time to the challengers of the latest travel ban, as the Fourth Circuit's ruling was filled with detailed analysis and discussion that seemed to continually fall in the challengers' favor.

Don't Repent, Dissent

While it might not be much of a silver lining, Justice Sotomayor's dissent can give those standing against the travel bans some comfort, that at least one justice got it right. Her opinion that SCOTUS's granting of the writ, as to this case, should have been dismissed, rather than having the Fourth's judgment vacated, would have left the circuit court's judgment and opinion in place as binding precedent.

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