We have good news for you out of the Supreme Court tonight, but be warned: this particular battle is far from over.
The Daily Caller reports that the nation’s highest court has dismissed a legal challenge to President Donald Trump’s executive order temporarily banning immigration and refugee admissions from six Middle-Eastern countries that have significant jihadist presences but little-to-no ability on their end to screen out potential terrorists traveling to our country. Often falsely described as a “Muslim ban,” the moratorium was meant to be a temporary measure meant to give the United States more time to overhaul our own security screening processes, but has been held up in legal challenges for months.
However, it should be noted that the Supreme Court’s decision was not a vindication of the travel ban on its merits; the justices simply decided that because the ban expired in September, there is nothing to litigate … for now.
In an order issued just after 7:30 p.m., the justices remanded the case to the 4th U.S. Circuit Court of Appeals, the Richmond-based appeals court which upheld an injunction staying the ban’s enforcement. The justices ordered the court to dismiss the case as moot, and directed the 4th Circuit to vacate — or wipe out — its ruling finding the order unlawful.
A legal rule called the Munsingwear doctrine requires the vacatur of all lower court rulings in a case that is mooted while awaiting Supreme Court review, with several exceptions. Justice Sonia Sotomayor dissented from the Court’s vacatur order, but agreed that the challenge should be dismissed […]
The justices did not dismiss a second travel ban challenge brought by Hawaii. Where the case arising from the 4th Circuit concerned only the 90-day travel ban, the Hawaii case also challenges the 120-day ban on refugee resettlement, which will not expire until later this year. Tuesday’s order strongly suggests that the justices will dismiss the Hawaii case once the refugee resettlement provision terminates.
In each case, the challengers argue Trump’s order exceeds his authority under federal immigration law. They further say the order is unconstitutional, claiming in targets Muslims for disparate treatment.
The travel ban was replaced by another proclamation is late September, assessing travel sanctions against eight countries that fail to comply with U.S. security standards. Legal challenges to the September proclamation could reach the high court in the coming months.
The Trump Administration’s revised travel ban will surely be the subject of legal battles for months to come, and could well make it to the Supreme Court, at which point the policy’s fate will most likely be decided by whatever side of the bed Anthony Kennedy gets up from when the time comes — unless President Trump has had the opportunity to replace another Supreme Court Justice or two with an actual constitutionalist by then.
This is no way to run a federal government. The courts are there to litigate real collisions between the Constitution and the actions of the elected branches, not to tie up unquestionably-lawful exercises of the commander-in-chief’s constitutional powers in defense of the nation.