The Trump administration told the Supreme Court Thursday to view earlier litigation over the president's travel ban as moot after Trump issued a new order blocking citizens from certain countries from entering the U.S.
But the state of Hawaii, which is challenging the travel ban in the courts, disagreed, saying that the earlier litigation should still be effective and the justices should not toss out the lower courts' judgments against the Trump travel ban.
The Trump administration issued new guidance as the limited version of the ban, which the high court allowed to proceed, reached its expiration date at the end of September. Trump's new order issued late last month prompted the Supreme Court to scrap its scheduled October arguments over the ban.
The Supreme Court had allowed the Trump administration to ban citizens of six majority-Muslim countries unless they had close family members in the U.S. The ban also blocked all refugees from entering the country for 120 days.
On Thursday, Solicitor General Noel Francisco argued that the cases were — or would soon become — moot because of the new executive order and he urged the high court to vacate lower courts' rulings against Trump.
"The appeal of the 4th Circuit's judgment is now moot in full, as is the 9th Circuit appeal concerning Sections 2(c) and 6(b)," Francisco wrote. "For the only portion of the 9th Circuit's judgment still at issue — regarding the global refugee suspension in Section 6(a) — no respondent has a justiciable claim, and in any event the global suspension will expire in less than three weeks."
The new restrictions that will be implemented later this month mean all foreign nationals from Iran, Syria, North Korea are suspended indefinitely from coming to the U.S. Citizens of Chad, Yemen and Libya are banned from coming to the U.S. as immigrants and as nonimmigrants on business (B-1), tourist (B-2) and business/tourist (B-1/B-2) visas. All immigrant Somalis also will be suspended from coming into the United States.
The Trump administration added Chad, Venezuela and North Korea to the list of countries, while Sudan and Iraq were removed after evaluations involving the Departments of Homeland Security, Justice and State. Neal Katyal, Hawaii's counsel, wrote that no new developments — the September expiration date and new guidance — should change the travel ban litigation the high court had agreed to hear.
"Neither of these developments renders the existing dispute moot, and the [Supreme] Court may continue to hear the case," Katyal wrote. "But if the court deems it imprudent to address the questions presented in this posture, the proper course is to dismiss the petition as improvidently granted and permit the parties to litigate their dispute in the context of the Proclamation ("EO-3")."
American Civil Liberties Union attorney Omar Jadwat also wrote Thursday that Trump's newest guidance did nothing to alter the conduct the challengers view as harmful.
"Plaintiffs retain an all-too-real stake in the outcome of the case," Jadwat wrote. "The 90-day ban on their relatives has now been converted into an indefinite ban with the potential to separate their families, and thousands of others', for years. And the religious condemnation of the earlier executive order is not dissipated by EO-3, which — despite some new window dressing — continues to relay a message of disparagement to the plaintiffs and other members of their faith."
Whether the Supreme Court shares the government's view of the travel ban litigation as moot will determine whether the next site of the legal battle will restart at a lower court or continue at the Supreme Court. Hawaii is spoiling for a fight at the high court, but an outcome where the Supreme Court does not vacate lower court rulings against Trump's ban would benefit Hawaii in its ongoing fight against Trump's ban.