Supreme Court Dismisses 1 of 2 Travel Ban Cases

By George Khoury, Esq. on October 13, 2017 | Last updated on March 21, 2019

In one of the two closely watched and highly controversial travel ban cases that the U.S. Supreme Court agreed to take up on review this term, an order of dismissal has been issued. However, the dismissal only applies to Executive Order 13,780, a.k.a. travel ban 2.0, which had expired as of September 24, 2017.

As the Court explained in a brief order, because the travel ban in issue had expired, the legal case no longer presented a "live case or controversy." In legal terms, the case was ordered dismissed as "moot" -- which is basically the Court  refusing to hear a case where it can't fix anything anymore.

Supreme Surprises

What may have surprised many legal commentators was the fact that the High Court vacated the judgment of the Fourth Circuit Court of Appeals, which had upheld the district court's granting of a preliminary injunction. Confused yet? If you are, don't worry, it confuses most lawyers too. But read on below and it'll all be made clear.

Another surprise involved the fact that the court would even take the matter up in the first place given the expiration date of the travel ban.

Vacating Precedent

When the travel ban 2.0 was announced, it faced immediate challenges. The federal district court agreed with the challengers and issued an order (the preliminary injunction) basically blocking it until the end of the court case. The government appealed that order to the federal Fourth Circuit Appellate Court, which upheld the order blocking it. When a federal appellate court issues a order, those orders can often be cited as legal precedent. But, in addition to dismissing the case, the Supreme Court vacated that Fourth Circuit's order, which essentially renders it not usable as precedent.

However, not all the justices agreed that vacating the order was the right move. Notably, Justice Sonya Sotomayor believed that the justices erred in accepting the case for review, and should have reversed that decision. Doing so would have left the appellate court's order intact, and usable as precedent.

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