Release Date:  October 11, 2017
Contact:  Michael Rushford
(916) 446-0345

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On October 10, the U. S. Supreme Court issued the following order in Trump v. International Refugee Assistance Project, the Fourth Circuit case challenging the 90-day ban on travel from six countries where the U. S. was unable to properly vet admittees:
We granted certiorari in this case to resolve a challenge to “the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780.” Because that provision of the Order “expired by its own terms” on September 24, 2017, the appeal no longer presents a “live case or controversy.” Burke v. Barnes, 479 U. S. 361, 363 (1987). Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). We express no view on the merits.
Justice Sotomayor dissented from the order to vacate the Fourth Circuit ruling. The link to the Court’s 8-1 order is here: The Court’s order means that the Fourth Circuit opinion is wiped out as precedent. The California-based Criminal Justice Legal Foundation’s brief in the case urged precisely this result and is available at

At the time of the main briefing CJLF was the only one calling for this, although in a supplemental letter brief in response to the Court’s request the Government changed its prior position.

The companion case Trump v. Hawai’i from the Ninth Circuit addresses two other provisions in addition to the 90-day ban. A provision limiting the number of refugees in the fiscal year just ended and became moot on October 1. A 120-day provision will become moot 120 days from the day the Supreme Court partially lifted the stay on it, which will be later this month. We expect a similar disposition of that case at that time.

“The Fourth Circuit’s opinion in this case contained overheated rhetoric and misused campaign statements to block a legal exercise of presidential authority,” said CJLF Legal Director Kent Scheidegger. “We are pleased to see it eliminated as precedent.”

CJLF Legal Director Kent Scheidegger is available for comment at (916) 446-0345.