Cross-posted at Prawsblog 

I've been following with interest the debate over when and whether President Trump's revised travel ban expires, thus potentially mooting the Fourth Circuit's decision (on which the Solicitor General has petitioned for certiorari). Joshua Matz raised the problem of potential mootness last week; Marty Lederman has a detailed post on the issue arguing that the Court should deny the Government's cert petition because the ban expires imminently; Mark Tushnet offered some thoughts along somewhat similar lines. Will Baude has a thoughtful response; and now Marty has replied in turn.

I'm not writing to weigh in on the merits of this dispute, although I'll confess to finding Marty's analysis somewhat more plausible than Will's as a reading of what the executive order actually said (as opposed to what it perhaps should have said; better lawyering on the front end in the White House could have avoided this potential obstacle to SCOTUS review). Instead, what I'm interested in is what the Court might or should do if it agrees with Marty that the ban is, or soon will be, moot. Marty argues that the impending mootness is a reason to deny certiorari. But as Leah Litman flagged, it's possible that mootness could lead to a different result: vacatur of the Fourth Circuit's decision under the Munsingwear doctrine. (Ian Samuel and I also discussed this briefly in yesterday's episode of First Mondays). 

Under Munsingwear  (about which now-Judge Pattie Millett has a helpful introduction from a years back here), the Court will sometimes vacate a decision by a lower federal court where the dispute has become moot on the way to the Supreme Court.  The Court will do this in order to prevent the now-moot lower court decision from having legal effect: vacatur "clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance."

Let's assume for present purposes that the dispute is, or shortly will be, moot. (So for that reason, I'm ignoring the distinct question of whether the Administration could be said to have engaged in "voluntary cessation" preventing mootness).  Would Munsingwear require vacatur? It's a complicated question that I'm still thinking through, but here are my thoughts so far.  (I've had some helpful e-mail exchanges with Marty and Leah that have shaped my thinking on this.).  In my view, Munsingwear vacatur is possible here. Here are a couple legal wrinkles I've worked through.

1.  Voluntary Action. The Court made clear in U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership that Munsingwear vacatur orders aren't normally appropriate when "the party seeking relief from the judgment below caused the mootness by voluntary action." There, the losing party's agreement to settle the case "constitute[d] a failure of equity" that deprived it of "equitable entitlement to the extraordinary remedy of vacatur." An important question is thus whether here the Government (the losing party that would benefit from vacatur) caused the mootness by its voluntary action, or whether instead this is a case where the mootness is a case where mootness is the result of "happenstance." On the one hand, any mootness is the Government's fault: to the extent that Executive Order 13780 was written in such a way that, as Marty argues, the entry ban expires in 90 days from the effective date of the order—without regard to whether the ban is stayed by a court—the Government could have avoided that problem through better drafting. 

Yet even if that's so, I'm not sure whether that failure is really the same as, say, a party's voluntary decision to settle a dispute. This is an equitable inquiry, so it's a bit fuzzy. But the fact that the government could have done something differently to avoid potential mootness in the face of a subsequent legal challenge strikes me as pretty different from a party's voluntary action after the adverse legal decision that makes the dispute moot.  Maybe the best argument (suggested to me by Leah) is that the government could have tried to move even more quickly to avoid mootness—maybe seeking Supreme Court review by certiorari before judgment before the court of appeals had ruled. But that seems like a stretch. Also helpful is Alvarez v. Smith, which suggests that whether the party or parties who mooted the case was trying to avoid Supreme Court review is relevant to whether the mootness is the result of "voluntary action" precluding vacatur or mere "happenstance" permitting it. Here, I don't think there's a good argument that the executive order was written as it was in order to preclude Supreme Court review, so my inclination is to think of this as "happenstance." 

One interesting side note that provides some guidance about when executive action can deprive the government of entitlement to seek vacatur: in Munsingwear itself, the party that should have sought vacatur, but slept on its rights, was the United States—after a district court decision in a case where the Government was the plaintiff finding that the defendant hadn’t violated a price-fixing regulation, the government decontrolled the commodity in question and then failed to seek vacatur of that district court decision, making it res judicata between the parties.  In Bancorp, the Court in a footnote hinted that the unstated premise in Munsingwear that the Government would have been entitled to vacatur was wrong:

"We thus stand by Munsingwear's dictum that mootness by happenstance provides sufficient reason to vacate. Whether that principle was correctly applied to the circumstances of that case is another matter. The suit for injunctive relief in Munsingwear became moot on appeal because the regulations sought to be enforced by the United States were annulled by Executive Order. See Fleming v. Munsingwear, Inc., 162 F. 2d 125, 127 (CA8 1947). We express no view on Munsingwear's implicit conclusion that repeal of administrative regulations cannot fairly be attributed to the Executive Branch when it litigates in the name of the United States."

I don't think this is decisive here, however; in Munsingwear, the mootness was caused by an executive order after the adverse lower court decision was rendered. Here, the mootness is caused by the executive order that is itself the very subject of the injunction at issue, so I think it's a bit different. 

2.  Purposes of Vacatur. A second question is whether vacatur is really appropriate here given that the party seeking vacatur is the United States.  Munsingwear suggests that the purpose of vacatur is to "clear[] the path for future relitigation of the issues between the parties." Often, a losing party wants the lower court judgment vacated to avoid the possibility that that judgment will be used to collaterally estop the losing party in future suits. But the United States, unlike most parties, is not subject to nonmutual collateral estoppel, at least on constitutional issues. One might object that there's less need for vacatur in light of that fact: there's no risk that the Fourth Circuit's decision can be used to estop the government from arguing that a similar entry ban is, say, motivated by anti-Muslim animus in a future case.

I don't think this objection is at all decisive, however. The government would, I think, still be bound by collateral estoppel in a later case brought by the same plaintiffs. But even if that isn't true for some reason, there are other legal consequences of the Fourth Circuit's ruling that would persist if the opinion isn't vacated. The en banc opinion would remain circuit precedent, binding as a matter of stare decisis, in future cases in the Fourth Circuit. And the Court's decision in Camreta v. Greene implies that a Munsingwear vacatur is appropriate where it serves to prevent the creation of unreviewable precedent that would be binding in future cases.  (There, the Court vacated the part of the Ninth Circuit's ruling that held that the defendant's conduct violated the constitution, in part because that rule would "govern future cases.").  Here, I think it wouldn't be a distortion of the Munsingwearrule to vacate the Fourth Circuit's decision to prevent it from serving as precedent, irrespective of whether it has any collateral estoppel effect at all. 

My final thought is more practical than legal. Assuming Marty has the better of the argument on the mootness point, I still find it hard to believe that the Court would simply deny cert. in Trump v. IRAP. The issues seem too big, and the Fourth Circuit's injunction is too broad, for me to believe that six Justices (since only four are needed to grant cert.) would let the decision stand without further scrutiny (although that's not to say I think the Court couldn't uphold the ruling in the end, after full briefing and argument; just that letting it stand via a cert. denial seems implausible).

A Munsingwear vacatur, however, could be an intriguing compromise that just might generate consensus on the Court. It would let the Court avoid wading into treacherous constitutional waters—I can't imagine many Justices are eager to address the question of how much legal weight President Trump's statements deserve, especially in light of his ill-considered tweetstorm yesterday.  But it would also avoid giving the impression that the Court approved of a nationwide injunction about which the conservative Justices will, I suspect, have serious concerns. Chief Justice Roberts has over the years cobbled together a number of compromises that at the very least kicked difficult constitutional questions down the road (think, for example, of Northwest Austin Municipal Utility District v. Holder, where the Court managed to dispose of the case in a way that deferred the issue of the constitutionality of § 5 of the Voting Rights Act for several years—see also Richard Re's great piece on this approach by the Roberts Court).

It wouldn't surprise me to see something similar happen here. Whether that would be at the cert. stage, or after cert. was granted and the case was fully briefed and argued, I'm not sure; but, like Will, I think further briefing on the mootness question is in the offing, one way or another. 

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