Hawaii to Supreme Court: No need to review travel ban

by Amy Howe, SCOTUS Blog, June 20, 2017

Calling the March 6 executive order signed by President Donald Trump, which put a temporary hold on visas for travelers from six Muslim-majority countries, “grossly unlawful,” the state of Hawaii today urged the Supreme Court to sit out the litigation over the legality of the order, popularly known as the “travel ban.” Instead, the state told the justices, they should allow two lower-court orders putting the order on hold to remain in place. After all, the state suggested, even the federal government – which is defending the order in court — “has revealed by word and deed that even it believes” that the travel ban is no longer necessary.

The Trump administration has asked the justices to reinstate the travel ban, which two separate federal appeals courts had blocked, and review the dispute over the ban on the merits. The government’s original request for the Supreme Court to weigh in came after the U.S. Court of Appeals for the 4th Circuit had blocked the government from implementing the ban, but before the U.S. Court of Appeals for the 9th Circuit had ruled in Hawaii’s challenge to the ban. The justices ordered the latest round of briefing – of which today’s filing was a part – after the 9th Circuit ruled for Hawaii on June 12.

The brief that Hawaii filed today reiterated many of the points that the state made in its earlier briefing. The state complained, for example, that the federal government had doubled “down on a breathtaking vision of unreviewable” power for the executive branch. But, the state maintained, federal immigration laws do not give president “an absolute right to control immigration.” Recounting the history of early U.S. colonists, the state stressed that the Founding Fathers “were thus familiar both with the violent threat posed by religious zealots and with the threat to our liberties posed by governments acting in the name of the United States. Our Constitution,” the state emphasized, “is designed to guard against them both.”

But the main focus of the state’s brief (as well as a short brief filed by the challengers in the 4th Circuit case) was an effort to convince the justices that, putting everything else aside, there is no need for the justices to get involved in the travel ban dispute now. The state explained that, in the wake of the 9th Circuit’s ruling, the president had instructed agencies within the federal government to begin their review – required by the March 6 order – of the procedures that they use to vet visa applications. The government, the state contended, had argued that the ban on new visas for travelers from the six Muslim-majority countries was necessary to give the government time to conduct this review. The government will now be able to start that process soon.

But, the state continued, the provisions in the March 6 order barring new visas for travelers from six Muslim-majority countries won’t go into effect until three days after the freeze is lifted. And the federal government has told the Court that it does not need to hear the case until October, almost nine months after the ban was originally imposed. By that point, the state suggested, the government’s justification for the ban – the need to vet visa procedures – will no longer exist, eliminating any need for the court to weigh in. “Even when faced with important issues,” the state observed, “this Court does not review cases that no longer have any practical urgency.”

Hawaii also told the justices that, if they disagree and decide to review the 4th Circuit’s ruling freezing the travel ban, they should also take on the 9th Circuit’s case. The federal government will file its response to today’s filing by noon tomorrow – presumably in time for it to consider the government’s requests at the justices’ private conference on Thursday.