Amicus Curiae Brief — Trump v. Int'l Refugee Assistance Project, 138 S. Ct. 50 (2017) (No. 16-1436)

~ Supreme Cour. Us.

FILED

RECORD Nos. 16-1436 & 16-1540 AUG - 7 2017

AND oo

SREre IN THE |__ OFFICE OF THE CLERK

Supreme Court of the United States

DONALD J. TRUMP,

President of the United States, et al.,

Petitioners,

vs.

INTERNATIONAL REFUGEE ASSISTANCE

PROGRAM, ef al.,

Respondents.

DONALD J. TRUMP,

President of the United States, et al.,

Petitioners,

US.

STATE OF HAWAI’I, et ail.,

Respondenis.

—

On Writs of Certiorari to the United States

Courts of Appeals for the Fourth and Ninth Circuits

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF NEITHER PARTY

oa

KENT S. SCHEIDEGGER

Counsel of Record

KYMBERLEE STAPLETON

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

(916) 446-0345

briefs@cjlf.org

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

QUESTIONS PRESENTED

These cases involve the validity of Executive Order

No. 13780, 82 Fed. Reg. 13209 (Mar. 6, 2017). Section

2(c) of that order suspends for 90 days the entry of

foreign nationals from 6 countries that Congress or the

Executive previously designated as presenting height-

ened terrorism-related risks, subject to case-by-case

waivers. Section 6(a) suspends refugee admissions for

120 days. Section 6(b) reduces the number of refugees

to be admitted in Fiscal Year 2017.

The questions presented are:

1. Whether respondents’ challenge to the temporary

suspension of entry of aliens abroad is justiciable.

2. Whether section 2(c)’s temporary suspension of

entry violates the Establishment Clause.

3. Whether the global injunction, which rests on

alleged injury to a single irdividual plaintiff, is

impermissibly overbroad.

4. Whether the order complies with the Immigration

and Nationality Act.

5. Whether the challenges to section 2(c) became

moot on June 14, 2017.

(i)

Cre es

TABLE OF CONTENTS

I sO sas te art ae i

oe c,h ee ee red dan iv

I i 3 av eaiin wa pirat % 1

EES eT Pt or ad 2

RE Del SOA a? ET 4

SR otek Veta yt re 20> so, Tt eter Ase 5

I

The challenges to § 2(c) will be moot before

RE cca eh a CS SVR ARCUOE ESM E EK we eae 5

A. Effective date and expiration date ........ 5

ie: NII og sc si veebaee pense ess 7

Il

No “exception” to mootness applies .............. 8

A. Exceptions v. scope of rules .............. 8

B. Capable of repetition yet evading review ... 9

C. Voluntary coesntion ...............00. 13

Ill

The decisions of the courts of appeals should be

vacated under Munsingwear ................. 15

RY Sirk ake bd 6 he Ge hea aah ee 18

(iii)

iv

TABLE OF AUTHORITIES

Cases

ACLU of Massachusetts v. U. S. Conf. of Catholic

Bishops, 705 F. 3d 44 (CA1 2013) .......... 14,15

Already, LLC v. Nike, Inc., 568 U.S. 85

EE ee Ce he See ou a at 7, 14,15

Alvarez v. Smith, 558 U.S. 87 (2009) ..... 16, 17, 18

Arave v. Hoffman, 552 U.S. 117 (2008) .......... 18

Bunting v. Mellen, 541 U.S. 1019 (2004) ........ 12

Camreta v. Greene, 563 U.S. 692 (2011) ...... 12,15

Chicago & Southern Air Lines, Inc. v. Waterman

o. &. Covp., S30 U.S. 108 (1966) .............. 16

City News & Novelty, Inc. v. Waukesha,

ee ee 10, 11

City of Los Angeles v. Lyons, 461 U.S. 95

EN rd a oak x hae owe a Aes Ck ihe kalo 10

DeFunis v. Odegaard, 416 U.S. 312 (1974) ...... 10

E. I, Du Pont de Nemours & Co. v. Invista B. V.,

oe Ee ee 14

Erie v. Pap’s A. M., 529 U.S. 277 (2000) ......... 11

Fleming v. Munsingwear, Inc., 162 F. 2d 125

I a no Lt ee ewh eden ek eae och 17

Friends of the Earth, Inc. v. Laidlaw Environmental

Services, Inc., 528 U.S. 167 (2000) ............. 8

Hawai’i v. Trump, 859 F. 3d 741 (CA9 2017) ...... 3

Holder v. Humanitarian Law Project,

ee I ond ovis ee bactect ste eeue 16

International Refugee Assistance Project v. Trump,

og fg | re 3

Knox v. SEIU, Local 1000, 567 U.S. 298 (2012) ... 13

Lewis v. Continental Bank Corp., 494 U. S. 472

A od ol wes nae p We Nd oe PMA WE DLO Ae 8

New Orleans Flour Inspectors v. Glover,

as Me IN ein SB cs wee we cawccsnabads 16

O’Connor v. Washburn Univ., 416 F. 3d 1216

PCa. is. k ive bad Vane Meee se wee 14,15

Public Utilities Commn. v. FERC, 100 F. 3d 1451

NS eGo. i i Peau be ag daw ew ewer ed 4 14

Roe v. Wade, 410 U.S. 113 (1973) .............. 10

Schriro v. Summerlin, 542 U. S. 348 (2004) ....... g

Southern Pacific Terminal Co. v. ICC,

I ee 9

Spencer v. Kemna, 523 U.S. 1(1998) ........... 10

Teague v. Lane, 489 U.S. 288 (1989) ............. i]

Trump v. International Refugee Assistance Project,

582 U.S. ___ (No. 16-1436, June 26, 2017) ....... 5

Turner v. Rogers, 564 U.S. 431 (2011) ..... 9,10, 12

U. S. Bancorp Mortgage Co. v. Bonner Mall

Partnership, 513 U.S. 18 (1994) .............. 17

United States Parole Commission v. Geraghty,

ee oe 8,9

United States v. Munsingwear, 340 U. S. 36

SED Sac es > oes he awaeuke eee eee tee 16

Washington v. Trump, 847 F. 3d 1151

PTY bv vevceescaktentdtan eee 2.3

Ziglar v. Abbasi, 582 U.S. _ (No. 15-1358,

SO RC MPEO ce cns oni ek ood eee eee 8

Executive Orders

Executive Order No. 13769, Protecting the Nation

From Foreign Terrorist Entry Into the United

States, 82 Fed. Reg. 8977 (January 27,2017) ....2

Executive Order No. 13780, Protecting the Nation

From Foreign Terrorist Entry Into the United

States, 82 Fed. Reg. 13209 (Mar. 6, 2017) .... 3,13

Presidential Memorandum for the Secretary of State,

the Attorney General, the Secretary of Homeland

Security, and the Director of National Intelligence

(June 14, 2017), https://www.whitehouse.gov/the-

press-office/2017/06/14/presidential-memorandum-

secretary-state-attorney-general-secretary ...... 6

Secondary Authorities

Federalist No. 70 (C. Rossiter ed. 1961)

i ED ss «i. odio ee bana eee eee 16

Hall, The Partially Prudential Doctrine of Mootness,

77 Geo. Wash. L. Rev. 562 (2009) ............ 8,9

vii

Moore, J., et al., Moore’s Federal! Practice

eS a ce ee ectees 14

U.S. Dept. of State, Important Announcement:

Executive Order on Visas, https://travel.state.gov/

content/travel/en/news/important-

a 6

IN THE

Supreme Court of the United States

DONALD J. TRUMP,

President of the United States, et ai.,

Petitioners,

Us.

INTERNATIONAL REFUGEE ASSISTANCE

PROGRAM, et ai.,

Respondents.

DONALD J. TRUMP,

President of the United States, et a/.,

Petitioners,

US.

STATE OF HAWAI'I, et al.,

Respondents.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF NEITHER PARTY

——_

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a

non-profit California corporation organized to partici-

ae

The parties have consented to the filing of this brief.

No counsel for a party authored this brief in whole or in part,

and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief.

No person other than amicus curiae CJLF made a monetary

contribution to its preparation or submission.

pate in litigation relating to the criminal justice system

as it affects the public interest. C.JLF seeks to bring the

constitutional protection of the accused into balance

with the rights of the victim and of society to rapid,

efficient, and reliable determination of guilt and swift

execution of punishment.

In this case, two courts of appeals have upheld

injunctions against a temporary section of an executive

order issued by the President “to protect the Nation

from terrorist activities by foreign nationals admitted

to the United States... .” Although the enjoined

section will have expired by the time this case is argued,

the precedents of judicial interference set in these cases

may hamstring the current President’s and future

Presidents’ abilities to protect the people from foreign

dangers. The continued precedential effect of these

decisions is contrary to the interests CJLF was formea

to protect.

SUMMARY OF FACTS AND CASE

Only a brief summary is needed here to frame the

issues discussed in this brief.

On January 27, 2017, President Donald J. Trump

issued Executive Order No. 13769, Protecting the

Nation From Foreign Terrorist Entry Into the United

States. 82 Fed. Reg. 8977 (“EO-1”). Section 3(c) of this

order suspended entry of aliens from seven countries

for 90 days. “Two States challenged the Executive

Order as unconstitutional and violative of federal law,

and a federal district court preliminarily ruled in their

favor and temporarily enjoined enforcement of the

Executive Order.” Washington v. Trump, 847 F. 3d

1151, 1156 (CA9 2017) (per curiam). The Ninth Circuit

found that EO-1 violated the due process rights of

lawful permanent residents and potentially others, see

id., at 1165-1166, and denied a motion for a stay

pending appeal. /d., at 1169. “Rather than continue

with the litigation, the Government filed an unopposed

motion to voluntarily dismiss the underlying appeal

after the President signed EO2.” Hawai’i v. Trump,

859 F. 3d 741, 757 (CA9 2017) (per curiam). “EO-2” is

Executive Order No. 13780, Protecting the Nation

From Foreign Terrorist Entry Into the United States.

82 Fed. Reg. 13209 (Mar. 6, 2017).

EO-2 also had a 90-day suspension provision, § 2(c),

but it was more limited. Iraq was no longer included

because of improvements in that country. See § 1(g).

The order exempted persons with due process rights to

entry by limiting its scope to persons who were outside

the country and did not have a valid visa on the date of

issuance of EQ-1, and by specifically exempting lawful

permanent residents and several other categories of

persons. See EO-2, §3(a) and (b). The duration of the

suspension was “90 days from the effective date of this

order,” $2(c), and the effective date was specified as

March 16, 2017. §14.

The Fourth Circuit, with three judges dissenting,

affirmed a nationwide injunction against § 2(c), lifting

it only as applied against the President himself. /nter-

national Refugee Assistance Project vy. Trump, 857 F .. 3d

554, 604-606 (CA4 2017). In a separate suit, the Ninth

Circuit affirmed a broader injunction against Sections

2 and 6 of the Executive Order on nonconstitutional

grounds, finding that “the President, in issuing the

Executive Order, exceeded the scope of the authority

delegated to him by Congress.” Hawai’i v. Trump, 859

F. 3d, at 755.

On June 14, 2017, the day that § 2(c) would have

expired under EO-2 as written and if it had not been

enjoined, the President issued a memorandum resetting

the effective dates of the enjoined provisions as the

dates the injunctions are lifted. See infra, at 6.

On June 26, 2017, this Court granted certiorari,

stayed the injunctions in part, and directed briefing on

mootness.

SUMMARY OF ARGUMENT

Whether the date for mootness of §2(c) is the

original June 14 date or September 24 (90 days from

this Court’s partial stay of the injunctions) is a question

that will itself be moot by the time this case is argued

on October 10. Assuming there are no further exten-

sions, §2(c) will have expired, it will not operate to

inhibit any person from entering this country, and no

person will have a legally cognizable interest in enjoin-

ing it. That is the very essence of mootness.

No exception to the mootness rule applies. The

issue is not “capable of repetition” within the meaning

of this Court’s cases. There is not a “reasonable likeli-

hood” that the circumstances which brought about this

extraordinary order will recur, and mere speculation is

not sufficient.

The expiration of an order that was planned to be

temporary from the beginning and not as a response to

this litigation is not a “voluntary cessation” within the

meaning of that exception to the mootness rule.

Although this Court has not directly addressed this

point, there is a consensus among the courts of appeals

on it.

When a federal civil case becomes moot pending

review, the normal practice is to vacate the lower court

decision under the rule of United States v. Munsing-

wear. Vacatur is particularly appropriate in this case,

involving sensitive matters of separation of powers that

should be addressed by this Court but cannot be be-

cause of mootness.

The U.S. Bancorp exception to vacatur, forfeiture of

that remedy by a party who settles the case, does not

apply in this case. Under Alvarez v. Smith, that excep-

tion does not apply when mootness is caused by an

action of a party that is “basically unrelated” to the

litigation. In this case, the 90-day duration of the

suspension was part of the plan from the beginning,

before any litigation was commenced.

These cases are moot as to § 2(c), and the decisions

of the courts of appeals should be vacated to the extent

they affirm injunctions against enforcement of that

section.

ARGUMENT

I, The challenges to § 2(c) will be moot before

argument.

A. Effective Date and Expiration Date.

In its per curiam opinion granting certiorari and

granting a stay in part, this Court directed the parties

“to address the following question: ‘Whether the

challenges to § 2(c) became moot on June 14, 2017.’ ”

Trump v. International Refugee Assistance Project, 582

U.S. _ (No. 16-1436, June 26, 2017) (slip op., at 9)

(“Trump v. IRAP”). Section 2(c), by its terms, expires

90 days from its effective date. The original effective

date was March 16, so the original expiration date was

June 14. See ibid. If the effective date is the date of

this Court’s order partially staying the injunction, June

26, the expiration date is Sunday, September 24, or

arguably the following business day, Monday, Septem-

ber 25. Because oral argument in this case has been set

for October 10, the question of which of these dates is

the date the challenge becomes moot will itself be moot

before oral argument in this case.

On the original expiration date of June 14, the

President issued a memorandum regarding the effective

date. See Presidential Memorandum for the Secretary

of State, the Attorney General, the Secretary of Home-

land Security, and the Director of National Intelligence

(June 14, 2017), https://www.whitehouse.gov/the-press-

office/2017/06/14/presidential-memorandum-secretary

-state-attorney-general-secretary, with the subject line

“Effective Date in Executive Order 13780.” That

memorandum “declare{d| the effective date of each

enjoined provision to be the date and time at which the

referenced injunctions are lifted or stayed with respect

to that provision.” The memorandum further provided

that it was to be construed “to amend the Executive

Order” “[t]o the extent it is necessary.”

The memorandum did not specify whether the

effective date reboot was based on a complete or partial

stay, but the executive branch has treated the partial

stay issued by this Court as making the order effective,

and no party has objected to this treatment. In an

announcement on its website, the State Department

said: “As of June 29, 2017, we began implementing the

executive order at our embassies and consulates abroad

in compliance with the Supreme Court’s decision and in

accordance with the Presidential Memorandum issued

onJune 14, 2017. Our implementation is in full compli-

ance with the Supreme Court’s decision.” U.S. Dept.

of State, Important Announcement: Executive Order

on Visas, https://travel.state.gov/content/travel/en/news/

important-announcement.htm! (viewed Aug. 2, 2017).

If this Court’s partial stay were not sufficient to

trigger the “effective date” under the June 14 memo-

randum, the executive order would not yet be in effect.

If the memorandum was not effective to reset the

effective date, then § 2(c) of the order would have

expired by its terms, and again it would not be in effect.

Yet the Government treated the order as being in effect,

and the plaintiffs did not challenge its implementation

on the basis that it was not. They challenged the

Government’s interpretation of the scope of this

Court’s stay and obtained relief from some applications

of the order on that basis, part of which was quickly

stayed by this Court. See Order of July 19, 2017, in No.

16-1540, Trump v. Hawaii; Hawaii Response to Motion

for Clarification 6-9 (describing proceedings and conten-

tions in District Court). Thus it appears to be undis-

puted that the President’s memorandum effectively

reset the effective date for the enjoined portions of the

order to June 26, 2017, but § 2(c) will still expire before

this case is argued.

B. The Mootness Rule.

The doctrine of mootness forms part of the bound-

ary of the judiciary’s constitutional grant of power. A

moot case lies outside the boundary. See Already, LLC

v. Nike, Inc., 568 U. S. 85, 90-91 (2013). “A case

becomes moot—and therefore no longer a ‘Case’ or

‘Controversy’ for purposes of Article I1I—‘when the

issues presented are no longer “live” or the parties lack

a legally cognizable interest in the outcome.’ ” /d., at

91 (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982)

(per curiam)).

Absent a further extension, by the time this case is

argued none of the plaintiffs in either action will have

a legally cognizable interest in enjoining the enforce-

ment of an expired order or in having it declared

invalid. This is all the relief that plaintiffs have asked,

see First Amended Complaint in International Refugee

Assistance Project v. Trump, U.S. D. C. Md., No. 8:17-

cv-00361-TDC, at 52-53; Second Amended Complaint in

State of Hawaii v. Trump, U.S. D. C. Hawaii, No. 1:17-

cv-00050-DKW-KJM, at 37, except for costs and attor-

neys’ fees, and these collateral demands are insufficient

to maintain jurisdiction. See Lewis v. Continental

Bank Corp., 494 U.S. 472, 480 (1990). Plaintiffs have

not asked for damages in either case, and given this

Court’ recent decision in Ziglar v. Abbasi, 582 U.S. __

(No. 15-1358, June 19, 2017), no such demand could

credibly be made regardless of the merits of the case.

This case meets the basic definition of mootness. It

is moot unless it comes within one of “the long-recog-

nized exceptions to mootness.” Friends of the Earth,

Inc. v. Laidlaw Environmental Services, Inc., 528 U.S.

167, 190 (2000).

Il. No “exception” to mootness applies.

A. Exceptions v. Scope of Rules.

This Court’s decisions over many years have estab-

lished that the mootness doctrine is an aspect of the

Constitution’s limitation of the judicial power to cases

and controversies, Laidlaw, 528 U.S., at 180, and also

that there are a number of exceptions. See id., at 190.

The inconsistency of these two propositions has occa-

sionally been noticed. If a case is not within the judicial

power, then the judiciary has no authority to assert

jurisdiction by creating a policy-based exception. See

United States Parole Commission v. Geraghty, 445 U.S.

388, 411-413 (1980) (Powell, J., dissenting); Hall, The

Partially Prudential Doctrine of Mootness, 77

Geo. Wash. L. Rev. 562, 563-564 (2009).

Professor Hall suggests bifurcating mootness into

constitutional and prudential branches, 77

Geo. Wash. L. Rev., at 565, while other commentators

suggest abandoning the constitutional basis of moot-

ness altogether. See id., at 564-565, nn. 11 and 12.

Amicus believes that a better approach is to recast the

“exceptions” as more nuanced definitions of the con-

tours of the rule. This is similar to what the Court has

done with habeas corpus retroactivity. The so-called

“first exception” to the rule of Teague v. Lane, 489

U. S. 288 (1989), is now recognized as a part of the

definition of the rule itself, not an exception to it. See

Schriro v. Summerlin, 542 U.S. 348, 352, n. 4 (2004).

This was essentially Justice Powell’s approach in

Geraghty, 445 U.5S., at 412. Collateral consequences

and defense against a credible threat of recurrence

supply the needed continuing personal stake rather

than furnish a policy-based exception to this constitu-

tional prerequisite to judicial power. This point may be

academic for the present case because none of the

“exceptions” apply regardless of how they are charac-

terized, but the matter should be clarified either in this

case or in another case in the near future.

B. Capable of Repetition Yet Evading Review.

In some cases, a court may proceed to decision

despite facial mootness if the underlying issue is

“capable of repetition, yet evading review.” See South-

ern Pacific Terminal Co. v. ICC, 219 U. S. 498, 515

(1911). The rule is narrower than this shorthand

description, though. “A dispute falls into that category,

and a case based on that dispute remains live, if ‘(1) the

challenged action [is] in its duration too short to be

fully litigated prior to its cessation or expiration, and

(2) there [is] a reasonable expectation that the same

complaining party [will] be subjected to the same action

again.” ” Turner v. Rogers, 564 U. S. 431, 439-440

(2011) (quoting Weinstein v. Bradford, 423 U. S. 147,

149 (1975) (per curiam)).

10

The “capable-of-repetition doctrine” is not as

broad as its capsule description sounds but instead

“applies only in exceptional situations... .” City of Los

Angeles v. Lyons, 461 U. S. 95, 109 (1983). The short

duration, by itself, is not sufficient, and “capable of

repetition” does not capture the full meaning of the

second prong. Repetition must not be a mere possibil-

ity, there must be a reasonable expectation of it.

Turner v. Rogers illustrates the kind of case that

qualifies. Turner had been found in contempt and sent

to jail for not paying support without a finding that he

was able to pay, and he was neither able to retain

counsel nor appointed counsel. See 564 U. S., at 436-

438. His 12-month contempt sentence was far too short

for full review up the appellate chain, but Turner’s

chronic arrears created “a more than ‘reasonable’

likelihood that [he] will again be ‘subjected to the same

action,’ ” and in fact he already had. See id., at 440.

Similarly, in Roe v. Wade, 410 U. S. 113, 125 (1978),

Jane Roe’s 1970 pregnancy was long past by the time of

this Court’s decision, but another was entirely possible.

On the other hand, in Spencer v. Kemna, 523

U. S. 1, 3 (1998), a challenge to parole revocation

became moot when the prisoner’s term was completed.

The possibility that the former prisoner might once

again be paroled and have his parole revoked did not

rise to the “reasonable likelihood” level. See id., at 18;

see also DeFunis v. Odegaard, 416 U. S. 312, 320, n. 5

(1974) (speculative possibility that last-term law

student might not graduate and need to reapply was

insufficient).

Similarly, in City News & Novelty, Inc. v. Wauke-

sha, 531 U.S. 278 (2001), a business challenging the

procedural adequacy of a city’s licensing requirement

withdrew its application after petitioning for certiorari

in this Court because it could not compete with a

11

“ larger and more modern’ ” purveyor of pornography.

See id., at 282-283. The remote possibility that the

company might re-enter the business was insufficient

for “ ‘a legally cognizable interest in the outcome.’ ”

Id., at 283 (quoting County of Los Angeles vy. Davis, 440

U.S. 625, 631 (1979)).

City News distinguished Erie v. Pap’s A. M., 529

U.S. 277 (2000), another case involving a failed “adult

business,” on the basis of which party was seeking

review and which one was seeking dismissal for moot-

ness. Erie came up on review from a state court, so

Munsingwear vacatur was not an option. See 529 U.S.,

at 305 (Scalia, J., concurring in the judgment); see also

Part III, infra (discussing Munsingwear). “Thus, had

we declared Erie moot, the defendant municipality

would have been saddled with an ‘ongoing injury,’ 7. ¢.,

the judgment striking its law.” City News, 531 U.S., at

284 (citing Erie, supra, at 288). The “speculation” that

Pap’s A. M. might reenter the business, “standing

alone,” would not have been sufficient to “shield the

case from a mootness determination.” J/d., at 283.

Because the City of Waukesha had prevailed in state

court, that problem was not present in City News. Id.,

at 284.

City News and Erie indicate that the key element

is the tangible interest of a party in preserving, revers-

ing, or vacating a decision on a question of law that the

party has a real possibility of needing to litigate in the

future. Had the City of Erie been “saddled” with an

adverse decision, any effort to enforce its law would

have been quickly enjoined at the behest of a plaintiff

who could cite that decision as collateral estoppel or res

judicata. In these “exceptional situations” that interest

is sufficient to maintain a live controversy, even when

the specific dispute that brought the decision about is

moot.

12

This same interest was noted in a different but

related context in Camreta v. Greene, 563 U. S. 692

(2011). Officials with child protection responsibilities

had received a decision that they had violated the

Fourth Amendment but prevailed on qualified immu-

nity. If the decision stood, they would not have immu-

nity if they repeated the same conduct that they be-

lieved to be legal performance of their duties, and this

was a sufficient personal stake for them to seek review

in this Court despite being prevailing parties in the

court of appeals. See id., at 702-703.

In most cases, avoiding mootness requires that

both parties retain a stake in the outcome. In Camreta,

even though the officials were able to seek review, the

case was nonetheless moot because the child had moved

across the country and would shortly no longer be a

child, so there was “not the slightest possibility” of

repetition. See 563 U.S., at 711. This was sufficient

for a finding of mootness and a partial Munsingwear

vacatur. See id., at 714, and n. 11. Similarly, Turner v.

Rogers, 564 U).S., at 440, distinguished DeF unis on this

basis. The contours of the Erie exception to the “both

parties” rule need not be considered in this case,

though, because repetition is not likely and neither

party has engaged in the kind of “gamesmanship” that

was of concern there. See Bunting v. Mellen, 541 U.S.

1019, 1021 (2004) (Stevens, J., respecting the denial of

certiorari).

The 90-day suspension in § 2(c) surely qualifies

as “too short to be fully litigated” for the first prong of

the test, see Turner v. Rogers, 564 U.S., at 439-440, so

the key inquiry is whether repetition is “reasonably

likely.” Once § 2(c) has lapsed, it is highly unlikely that

a new suspension will be imposed any time in the

foreseeable future, and that is sufficient to end this

case.

13

The events of the last year have been unprece-

dented in many ways. The 90-day suspension of

admissions from 6 particularly problematic countries,

see EO-2, §1(e), was a short-term measure by an

incoming administration that determined that a new

policy considerably more restrictive than the existing

policy was needed. The suspension has been reissued

once and extended once, largely because of the current

litigation, but if the Government allows it to lapse

without further extension it would likely be on the basis

that more permanent and targeted measures are ready.”

If that point has been reached by the time this case is

argued, it is extremely unlikely that the circumstances

that brought about the need for the suspension will

recur at any time in the foreseeable future. The cur-

rent administration and future ones will review the

restrictiveness of alien admission policies, to be sure,

but a shift of the same magnitude and direction as we

have seen this year is highly unlikely. The possibility is

much more speculative than the ones deemed insuffi-

cient in Spencer and City News. The “reasonably

likely” prong of the test is not met. The question is not

even close.

C. Voluntary Cessation.

“The voluntary cessation of challenged conduct

does not ordinarily render a case moot because a

dismissal for mootness would permit a resumption of

the challenged conduct as soon as the case is

dismissed.” Knox v. SEIU, Local 1000, 567 U.S. 298,

307 (2012). “Challenged” is a better term than “unlaw-

2. This brief is written two months before argument of this case

with regard to what action should be taken in light of the

situation at that time. The discussion must necessarily refer

to what we expect the situation to be as we cannot be certain.

14

ful” for the statement of this rule, cf. Already, LLC v.

Nike, Inc., 568 U.S. 85, 91 (2013), because the lawful-

ness of the conduct is necessarily disputed and undeter-

mined at the time the court addresses the threshold

question of mootness.

However it is stated, though, the central concern

of the rule is manipulation by the party whose conduct

is challenged. “Otherwise, a defendant could engage in

unlawful conduct, stop when sued to have the case

declared moot, then pick up where he left off, repeating

this cycle until he achieves all his unlawful ends.” Ibid.

(emphasis added). The purpose of the rule suggests a

limitation on its scope. “Voluntary cessation” refers to

cessation motivated by the litigation with the purpose

of having it declared moot. “The voluntary cessation

doctrine does not apply when the voluntary cessation of

the challenged activity occurs because of reasons

unrelated to the litigation.” 15 J. Moore et al., Moore’s

Federal Practice § 101.99[2) (3d ed. 2017).

This Court has not had occasion to squarely

address whether the doctrine applies to a voluntary

cessation motivated by factors external to the litigation,

but the courts of appeals have. “(I}n order for this

exception to apply, the defendant’s voluntary cessation

must have arisen because of the litigation.” Public

Utilities Commn. v. FERC, 100 F. 3d 1451, 1460 (CA9

1996) (emphasis in original); accord, O’Connor v.

Washburn Univ., 416 F. 3d 1216, 1221-1222 (CA10

2005); E. I. Du Pont de Nemours & Co. v. Invista B. V.,

473 F. 3d 44, 47 (CA2 2006).

“Circuit courts have routinely held that the

voluntary cessation exception is not invoked when the

challenged conduct ends because of an event that was

scheduled before the initiation of the litigation, and is

not brought about or hastened by any action of the

defendant.” ACLU of Massachusetts v. U. S. Conference

15

of Catholic Bishops, 705 F. 3d 44, 55 (CA1 2013). In

that case, the challenged contract had been completed

and expired, and the tax dollars at issue had already

been spent. The government’s new grants to different

grantees did not involve the underlying issue. See id.,

at 53-54. “This, in our view, is not a case of voluntary

cessation so as to invoke the exception.” I/d., at 55.

Similarly, in O’Connor, the challenged art exhibition

ended on schedule “through the normal course of

events,” not because of the litigation, and the voluntary

cessation doctrine did not apply. See 416 F. 3d, at

1221-1222.

In the present case, the Government has in-

tended from the beginning that the suspension of

entries from the named countries be a temporary 90-

day measure. The government action in response to the

litigation has been to extend the termination date, the

opposite of the concern behind the “voluntary cessa-

tion” doctrine. The doctrine does not apply, so the

Court need not ask if its test is met. Even if the test did

apply, though, the test would be met. For the reasons

stated in the previous section, it “could not reasonably

be expected” that a new restriction of this type will be

imposed in the foreseeable future, and speculation to

that effect is not sufficient to avoid mootness. See

Already, LLC, 568 U.S., at 92.

Ill. The decisions of the courts of appeals

should be vacated under Munsingwear.

“When a [federal]! civil suit becomes moot pend-

ing appeal,” this Court’s “ ‘established’ (though not

exceptionless) practice . . . is to vacate the judgment

below.” Camreta v. Greene, 563 U. S. 692, 712 (2011)

(citing United States v. Munsingwear, 340 U. S. 36, 39

(1950)). Indeed, this was already “established practice”

16

in 1950. Munsingwear cited a long string of cases going

back to the nineteenth century. See United States v.

Munsingwear, 340 U. 8S. 36, 39, and n. 2 (1950); New

Orleans Flour Inspectors v. Glover, 161 U.S. 101, 103

(1896).

This Court “normally . . . vacate|s] the lower

court judgment in a moot case because doing so ‘clears

the path for future relitigation of the issues between

the parties,’ preserving ‘the rights of all parties,’ while

prejudicing none ‘by a decision which . . . was only

preliminary.’ ” Alvarez v. Smith, 558 U. S. 87, 94

(2009) (quoting Munsingwear, 340 U.S., at 40). That is,

vacatur is the rule, and letting the lower court decision

stand is the exception. There is no ground for making

an exception in this case.

There is much to be said for clearing the path in

this case. Foreign affairs have long been recognized as

a particularly sensitive area where courts must tread

carefully. See Chicago & Southern Air Lines, Inc. v.

Waterman S. S. Corp., 333 U. S. 103, 111-112 (1948);

see also Holder v. Humanitarian Law Project, 561 U.S.

1, 33-36 (2010). “Energy in the executive” was recog-

nized as essential from the beginning. See The Federa!l-

ist No. 70, p. 423 (C. Rossiter ed. 1961) (A. Hamilton).

The sensitive separation of powers implications make a

compelling case for decision by this Court. See Pet. for

Cert. 33-34. Yet the merits cannot be decided by this

Court because the case is moot. If the Government was

entitled to free itself from the binding effect of an

unreviewable decision of a lower court regarding price

control formulas on underwear, see Munsingwear, 340

U.S., at 40-41, then it surely is entitled to do so regard-

ing the authority of the President to take steps he

deems necessary for protection of the nation and its

people from terrorism.

17

Vacatur must be granted when mootness results

from circumstances that are not attributable to either

party (“happenstance”) or are attributable to the

unilateral action of the party who prevailed in the lower

court. See U. S. Bancorp Mortgage Co. v. Bonner Mall

Partnership, 513 U.S. 18, 23 (1994). A nonprevailing

party who agreed to settle the litigation, however,

“voluntarily forfeited his legal remedy .. . thereby

surrendering his claim to the equitable remedy of

vacatur.” Id., at 25.

This emphasis on voluntariness bears a strong

resemblance to the “voluntary cessation” doctrine

described in Part II C, supra. Not surprisingly, Alvarez

v. Smith, 558 U. S. 87 (2009), comes to a position very

similar to the consensus of the court of appeals deci-

sions on that doctrine. The voluntary action needed to

forfeit the remedy of vacatur must have a causal link to

the present case. In U. S. Bancorp, the bank settled the

case in which the decision had been rendered, while in

Alvarez the local officials were sued in federal court

while forfeiture actions proceeded in state court. See

id., at 95-96. The “federal case played no significant

role in the termination of the separate state-court

proceedings” and return of the property. See id., at 96-

97. From this determination, Alvarez concluded, the

“ordinary practice” should be followed, vacating the

decision and “ ‘clear{ing] the path’ ” under Munsing-

wear.

Alvarez notes Munsingwear itself as an example

of mootness being caused by an act of the nonprevailing

party without forfeiting the vacatur remedy. See id., at

96. Injunctive relief became moot when the company’s

products were decontrolled on November 12, 1946. See

Fleming v. Munsingwear, Inc., 162 F.2d 125, 127 (CA8

1947). The obvious reason is that the war was over

along with the inflationary pressures that justified price

18

controls. The reason was “basically unrelated” to the

litigation. Alvarez, 558 U. S., at 96

This case is essentially the same as Munsingwear

in this regard. The 90-day expiration of § 2(c) was

predetermined for reasons that have nothing to do with

this litigation. The section is an extraordinary measure

that can and should expire when it is no longer needed,

and its expiration was scheduled at the outset.

This case resembles the “happenstance” cases

more than the “settlement” cases. See Alvarez, 558

U. S., at 94. The court of appeals decisions regarding

§ 2(c) must be vacated under Munsingwear. Where

other issues remain “live,” aMunsingwear vacatur may

be limited to the moot issues. See Arave v. Hoffman,

552 U.S. 117, 118-119 (2008) (per curiam).

CONCLUSION

The judgment of the courts of appeals in these

cases should be vacated as moot to the extent they

address the validity of § 2(c) of Executive Order 13780.

August, 2017

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation