Following the Fourth Circuit’s recent decision on Trump’s travel ban, much of the media coverage has suggested that the similar appeal pending in the Ninth Circuit has become largely insignificant. In fact, however, the Ninth Circuit’s decision could be far more consequential.
To be sure, the outcome in the Fourth Circuit protects those challenging the ban from the chaos that would otherwise result if they lost outright in the Ninth Circuit: Because the Fourth Circuit upheld a nationwide injunction, no matter what the Ninth Circuit does, the Trump administration cannot categorically ban people from the Muslim-majority nations absent intervention by the U.S. Supreme Court.
However, a subtle, but critical, difference between the two cases may give the Ninth Circuit control over whether this case ever makes it to the Supreme Court. It has the power to hand the challengers their most decisive victory yet—but, paradoxically, it would need to rule against them, in part, to do it.
To appreciate why, it is important to understand two contextual factors:
First, President Trump’s Executive Order was time limited. It stated that people from the six Muslim-majority countries would be banned for 90 days, to allow the administration to conduct a review of additional information that should be collected from foreign countries to implement the visa process (or, borrowing Trump’s eloquence, he wanted to block Muslims only “until our country's representatives can figure out what the hell is going on” with them).
Second, as a general matter, courts don’t like disputes that have become moot. If a case is moot in the strict sense—meaning that some event has eliminated the controversy between the parties—Article III of the Constitution prevents a court from adjudicating the case. And when it comes to the Supreme Court, even a softer version of mootness can be decisive—the Court gets to handpick its cases and even the mere possibility that a case will later become moot can lead the Justices to take a pass.
From the start of the litigation against Trump’s travel ban, the combination of these two factors had the potential to be a huge weapon for those challenging the ban. If they could obtain an injunction against the entry ban for just 90 days, they could argue that the dispute had effectively become moot: The only purpose of the entry ban was to allow time for an internal review, and that time had already passed.
The problem, however, is that the nationwide injunction issued by the district court in Hawaii—and under review in the Ninth Circuit—stands in the way of this argument. Unlike the injunction considered by the Fourth Circuit, the Hawaii injunction blocked Trump’s entry ban and prohibited the government from engaging in its 90-day internal review process. In doing so, the injunction has prevented the challengers from effectively arguing that this whole dispute should be over by now (if the clock started running from January 27, 2017, the date of Trump's first order) or, at the very least, well before the case could ever be resolved by the Supreme Court (as Joshua Matz recently explained on this blog, in all likelihood, the Supreme Court will take much longer than 90 more days to resolve this case).
The breadth of the Hawaii injunction seemed to cause great frustration in the Fourth Circuit, where multiple judges pressed Acting Solicitor General Jeffrey Wall on why the government had not yet completed its review process. Because of the Hawaii injunction, however, Wall was able to respond that the government had been forced to go “pencils down.”
By continuing to block the entry ban, but allowing the government to conduct its 90-day review, the Ninth Circuit can give the challengers back this powerful argument to put an end to Trump's Muslim ban.
Disclosure: In my capacity as an attorney at the Roderick & Solange MacArthur Justice Center, I submitted a brief in opposition to Trump's Executive Order.