Supreme Court has option to duck travel ban ruling

[September 25, 2017]  By Lawrence Hurley

WASHINGTON (Reuters) - The Trump administration's announcement on Sunday that it is issuing new travel restrictions on people entering the United States from eight countries could lead to an upcoming Supreme Court case on its previous more controversial ban ending in a whimper rather than a bang.

The new presidential proclamation set restrictions on citizens from eight countries and is set to go into effect on Oct. 18, eight days after the court is due to hear oral arguments over the legality of Trump's earlier ban.

The Trump administration on Sunday night asked the high court to considering hearing new briefing on the case before the oral argument to address "the effects of the proclamation on the issues currently pending before the court in these cases."

Now the nine-justice court could skip deciding the case altogether, legal experts said.

The March 6 order under Supreme Court review banned travelers from six Muslim-majority countries and limited refugee admissions. Challengers say the order discriminated against Muslims in violation of the U.S. Constitution.

A decision on that issue would be consequential not just for Trump but also future presidents who would be bound by it. But with the challenged policy no longer on the books, the court has various options to resolve the dispute without issuing a ruling.

The 90-day travel ban, which covered Iran, Libya, Somalia, Sudan, Syria and Yemen, ran until Sunday. The 120-day refugee ban expires on Oct. 24.

Even before Trump's latest announcement, experienced Supreme Court lawyers and immigration law experts had expressed doubts about whether the nine justices would want to issue a decisive ruling, in part because of a desire to stay out of such a contentious issue.

"If the court can avoid entering into the fray, that may be appealing to them," said Anil Kalhan, an immigration law professor at Drexel University School of Law.

With the travel restrictions expiring, the court has an easy way out because it could simply say that the case is no longer a live issue and therefore, in legal parlance, moot.

The Supreme Court has already intervened three times since March in limiting the scope of lower court rulings that struck down the March order. Its most significant act came in June when it allowed both bans to go into effect in a limited fashion.

A police officer patrols with a rifle as passengers gather their luggage at Dulles International Airport in Dulles, Virginia, U.S. September 24, 2017. REUTERS/James Lawler Duggan

The unsigned decision suggested that the court's four liberals and two of its conservative majority, Chief Justice John Roberts and Justice Anthony Kennedy, were keen on a compromise. Three other conservatives, including Trump appointee Neil Gorsuch, said both bans should have been allowed to go into effect in full.

The Trump administration has yet to say what it would prefer the court to do, but former Justice Department lawyers say it is likely to request that if the court does dismiss the case, it also throws out the lower court rulings that struck the bans down.

The benefit for the administration is that it would wipe out those precedents, including the broad decision by the Richmond-based 4th U.S. Circuit Court of Appeals that said the order discriminated against Muslims. The decision cited Trump's campaign statements in concluding that the order was motivated by anti-Muslim bias. The Trump administration says the order was needed for national security reasons.

"It's certainly in the government's interest to get the adverse ... opinions off the books because those decisions constrain executive authority," said Washington lawyer Pratik Shah, who previously worked at the Justice Department.

The March order took effect on June 26, following a Supreme Court ruling that narrowed the scope of lower court rulings.

Litigation continued over the summer on who exactly was covered by the bans, culminating in a Supreme Court decision on Sept. 12 that allowed Trump to enforce the refugee ban broadly but kept lower court restrictions that prevent close family members from being denied entry.

The March 6 order was itself Trump's second attempt to impose a travel ban after his original, much broader Jan. 27 plan was blocked by lower court following turmoil at U.S. airports caused by its abrupt rollout.

(Reporting by Lawrence Hurley; Editing by Sandra Maler)

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