The government just filed (on Thursday night) a petition for certiorari in Trump v. International Refugee Assistance Project, the case from the U.S. Court of Appeals for the Fourth Circuit that upheld a preliminary inunction against EO 13780 (or, more specifically, the part of EO 13780 that suspends entry into the United States from the nationals of six Muslim-majority countries).
More interesting is what accompanies the petition for certiorari. Accompanying that petition was the government’s request for a stay of the Fourth Circuit’s decision, as well as a request for a stay of the decision of the district court in Hawaii, which had also preliminarily enjoined portions of EO 13780. (The government appealed the Hawaii district court’s decision to the Ninth Circuit Court of Appeals, which heard oral argument just over two weeks ago, but has yet to issue a decision. Interestingly, the government did not file a petition for certiorari before judgment to the Ninth Circuit Court of Appeals. Even if the Court granted the petition for certiorari in the Fourth Circuit case, and stayed the Fourth Circuit decision and Hawaii district court decision, the Ninth Circuit could issue a decision. It’s not clear that they would do so, however.)
What is interesting about the stay requests is how the timing of the stays interacts with the petition for certiorari. If the Court grants the government a stay of the Fourth Circuit decision, that would stay—i.e., put on hold—the Fourth Circuit’s decision that preliminary enjoined the government from enforcing the entry ban. If the Fourth Circuit’s preliminary injunction is put on hold (together with the Hawaii district court’s preliminary injunction), then the government’s entry ban could go into effect. That is, a stay of the Fourth Circuit and district court decision would allow the government to enforce its ban on entry into the United States from the nationals of the six Muslim-majority countries.
Stay requests are treated differently than cases in which the Court has granted certiorari, and agreed to hear on the merits. Stay requests are disposed of based only on the briefs, without argument, and on a much quicker timetable than are cases in which the Court grants full review. So the Court could conceivably dispose of this stay request in relatively short order. The Court may grant a stay pending the disposition of a petition for a writ of certiorari if there is a reasonable probability that the Court will grant certiorari (that is just one of the conditions for obtaining a stay before disposition of a certiorari petition).
Let’s assume the Court grants the government a stay. The government asked the Court to grant the stay pending a disposition of the petition for certiorari. And the petition for certiorari could be granted or denied relatively quickly (let's say within a week or two).
But how would the stay work if the Court granted the government’s petition for certiorari, which asks the Supreme Court to review the judgment of the Fourth Circuit Court of Appeals? The government asked the Court for expedited briefing and consideration of its petition for certiorari. But its request contemplated that, if the Court were to grant the petition for certiorari, the briefing would be completed over the summer, such that the Court could hear the case “by the beginning of next term.”
The reason that’s interesting is because of the timing of the executive order. Under the terms of EO 13780, the ban on entry lasts “for 90 days from the effective date of this order.” EO 13780 was enjoined before it went into effect, and thus would become effective once the Court granted a stay to the government. [see update] But the ban on entry would last for only 90 days. If the Court granted the petition for certiorari and heard the full case on the merits at the beginning of next term, which starts in October, the ban on entry would have expired by that point.
At that point, the case may very well be moot, as Joshua Matz wrote earlier this week in his post about potential timing. There would be no live controversy for the Court to adjudicate, since the order is no longer in effect and has expired. If the case were moot by the time briefing on the merits finished and the Court was ready to hear argument, the government could ask the Court to vacate the Fourth Circuit’s decision under the “Munsingwear” doctrine. The Munsingwear doctrine calls for the Supreme Court to vacate a decision of a court of appeals that has become moot before the Supreme Court has had a chance to review the decision of the court of appeals on the merits. The government could very well see a stay and subsequent vacatur of the Fourth Circuit decision (and Hawaii district court decision) as a win.
I can think of three things the government might say if the Court granted a stay, and the government still wanted the case heard on the merits—one would be that the “internal review” of the executive’s visa procedures and the refugee cap, which the EO also calls for, aren't time limited. Section 6 of the EO imposes a 120-day suspension on the refugee program, and a new refugee cap imposed for fiscal year 2017. The district court in Hawaii enjoined those parts of the EO (the "internal review" and modifications of the refugee program) along with the entry ban, whereas the Fourth Circuit Court of Appeals enjoined only the 90-day ban on entry. But if there is no ban on entry, the nature of the plaintiffs’ injury changes—the plaintiffs’ injury is most obviously tied to the entry ban, not the government’s internal review of its procedures, or its refugee cap. And if the plaintiffs are not injured by the part of the EO that is still “live” by the time the Court reviews the case, then there isn’t a case. On top of that, the Fourth Circuit Court of Appeals didn’t preliminarily enjoin the “internal review” portion of the executive order; if the Court grants certiorari to the Fourth Circuit judgment, the internal review procedures aren’t a part of that case. They are a part of the Hawaii case (since the Hawaii district court enjoined the internal review part of the EO), but the government has not yet sought certiorari to the Ninth Circuit (before judgment) in that case. [see update]
The second thing the government might say is that the issue presented by the case (the legality of an order that lasts for 90 days) is “capable of repetition yet evading review”—i.e., the nature of the question presented in the case means that every case in which the question arises will become moot before the Supreme Court has a chance to weigh in. But the issue is “capable of repetition yet evading review” by the government’s own creation (because of the duration of the order, and the request for a stay coupled with a petition for certiorari to be heard next term). So I don’t think the Court would hear the case on the merits for that reason, either.
Finally, if the Court grants a stay and certiorari, the government could issue another executive order and extend the duration of the entry ban, so that the case isn’t moot when the Court would hear it on the merits. But it’s not clear the government would do so, especially if a stay and vacatur seems like a win.
So we may see a disposition of the stay requests and the petition for certiorari relatively soon. But granting the stay and the petition for certiorari may mean the Supreme Court never hears the case on the merits (i.e., with full briefing and argument and a written decision on the merits).
And quick procedural point I wasn't sure where to fit in: It takes four votes to grant certiorari, but five votes to grant a stay.
UPDATE: The government's request for a stay of the district court of Hawaii's decision asks the Court to construe the stay request, in the alternative, as a petition for certiorari.
FURTHER UPDATE: In the post, I've been assuming that "effective date" of the order means the date the order becomes effective, when not stayed, as opposed to the date the order says it becomes effective. Section 14 of the Order states: "Effective Date. This order is effective at 12:01 a.m., eastern daylight time on March 16, 2017." If March 16th is the "effective date" of the order, there is an argument that the case woud be moot after June 14, 2017, i.e., 90 days after the effective date of the order. Read Marty Lederman's post, which explains why the order went into effect March 16 and expires June 14 even with the injunctions.
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