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

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Nos. 16-1436 & 16-1540

OFFICE OF THE CLERK

Supreme Court of the United States

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,

ET AL., Petitioners,

Vv.

INTERNATIONAL REFUGEE ASSISTANCE PROJECT,

ET AL., Respondents.

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,

ET AL., Petitioners,

Vv.

STATE OF HAWAU, ET AL., Respondents.

ON WRITS OF CERTIORARI TO THE

UNITED STATES COURTS OF APPEALS

FOR THE FOURTH AND NINTH CIRCUITS

BRIEF FOR SCHOLARS OF FEDERAL

JURISDICTION AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

STEPHEN I. VLADECK SETH P. WAXMAN

727 E. Dean Keeton St. Counsel of Record

Austin, TX 78705 WILMER CUTLER PICKERING

HALE AND DORR LLP

OMAR A. KHAN 1875 Pennsylvania Ave., NW

JAMIE DYCUS Washington, DC 20006

ADRIEL L. CEPEDA DERIEUX (202) 663-6000

RYAN CHABOT seth.waxman@wilmerhale.com

WILMER CUTLER PICKERING

HALE AND DORR LLP MARK C. FLEMING

7 World Trade Center WILMER CUTLER PICKERING

250 Greenwich Street HALE AND DORR LLP

New York, NY 10007 60 State Street

Boston, MA 02109

TABLE OF CONTENTS

Page

py Li Nye sy yg | reece il

INTEREST OF AMICI CURIAE ...........0...cc cece, l

EASA Sy SO RRS yA REY VMTN TENE l

A. January Executive Order ....................ccceecssesneees l

TD. ETD BETO CIID cccccccnccectnsnsccevnsvcsscnscesisocves 3

iy.” GU ie III, 5. scnteosineenendnsenssuness 5

D. This Court’s June 26 Order...........c:ccceeeecceecceee- 5

EK. Implementation Of The March Executive

SUMMARY OF ARGUMENT................0.--.ccceccsssecceseeces. 8

ae IEE Aa Me Ae MO a ae NAN PON Sa Be bot 10

1. MOOTNESS Is A THRESHOLD

JURISDICTIONAL ISSUE THAT Must Br

ADDRESSED BEFORE THE MERITS ..........cccccecceececes 10

Il. THESE APPEALS WILL BE MooT BEFORE

(OR VERY SHORTLY AFTER) THE CouRT

PEICA RS CORAL, ARGU IIIIIGG cccscccsccccececccccoecccccncccssccecscces 11

1H1. THE Writs OF CERTIORARI SHOULD BE

DISMISSED WITHOUT VACATING THE

STE I SOT eT: 19

RIT i siciascitaconsiigccuasineentesiileanesenieleghevaientiniaeouiaesbibbiaes 23

TABLE OF AUTHORITIES

CASES

Page(s)

ACLU vy. Clapper, 804 F.3d 617 (2d Cir. 2015).............. 15

Aetna Life Insurance Co. v. Haworth, 300 U.S.

| ___R E E RAN ES SeR Nn a e 10

Alejandrino v. Quezon, 271 U.S. 528 (1926)..........ccc000 11

Allen v. Wright, 468 U.S. 737 (1984).......ccescecsereeeseeeerees 10

Alvarez v. Smith, 558 U.S. 87 (2009) .......ccccccccceccosceeeeees 20

American Federation of Government Employ-

ees, AFL-CIO v. Carmen, 669 F.2d 815

Se Te IED nctebscsnonsnetnctnedetnicutmascnnsenmiteeisesvvsmnensseses 14

Arizonans for Official English v. Arizona,

Se ee I diccnesenmeanennesstascscdninssonapntintsinierseconinen 10

Boston Firefighters Union Local 718 v. Boston

Chapter NAACP, Inc., 468 U.S. 1206 (1984)........... 10

Burke v. Barnes, 479 U.S. 361 (1987) ........cccceeeneees 11, 18

City of Erie v. Pap’s A.M., 529 U.S. 277 (2000)............ 10

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) .....17, 18

County of Los Angeles v. Davis, 440 U.S. 625

ITE ciasniceinredemnevaciissnessnaainaaihapieiindineaniiieiesiiastiindinbenie 10

Dames & Moore v. Regan, 453 U.S. 654 (1981)... 22

Darr v. Burford, 339 U.S. 200 (1950) ........ccccccsceseseeseeeeees 15

Federal Election Commission v. Wisconsin

Right to Life, Inc., 551 U.S. 449 (2007)........ccccc0000 17

Fortson v. Toombs, 379 U.S. 621 (1965) .........cccecceeceeeeee 18

iil

TABLE OF AUTHORITIES—Continued

Page(s)

Friends of the Earth, Inc. v. Laidlaw Envi-

ronmental Services (TOC), Inc., 528 U.S.

a iiss chinsikintchnciinhiaditnensinbactdateustanensouacamininnacidiit 18

Hall v. Beals, 396 U.S. 45 (1969) ..........cccccccccccssosersees 11, 18

Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017) .............. 4

Hohn v. United States, 524 U.S. 236 (1998).................. 21

Honig v. Students of California School for the

Ee Se te i iittitcte ss ctcisententenetensssccapsines 11

International Refugee Assistance Project v.

Trump, 857 F.3d 554 (4th Cir. 2017)............ ce ceeeeeeees 4

Izumi Seimitsu. Kogyo Kabushiki Kaisha v.

U.S. Philips Corp., 510 U.S. 27 (1998)... 20

Liner v. Jafco, Inc., 375 U.S. 301 (19G64).........cccccersssseees 10

Local No. 8-6, Oil, Chemical & Atomic

Workers International Union, AFL-CIO v.

BORDOUITE, TE UF Tis Se CID wince enccesccsccsvececcsnsccescees 11

Missouri, Kansas & Texas Railway Co. v.

Pg Be LR SR ence eneenp 10

North Carolina v. Rice, 404 U.S. 244 (1971) ...........0.2... 10

Rendell v. Rumsfeld, 484 F.3d 236 (8d Cir.

SUIT iiacictnietsncadacanieihaniadidiacatpasehadhiariaascbnienintaiaiipaiien 18, 19

South Spring Hill Gold Mining Co. v. Amador

Medean Gold Mining Co., 145 U.S. 300

SENET snisinsictinedenciilahindsbabiniemtenuntibendameinesebioheneelsndbeaniionianses 19

Super Tire Engineering Co. v. McCorkle,

Se Se I E eeterisanchsectninienneuinidtatenircnennianinsaneniiassin 18

TABLE OF AUTHORITIES—Continued

Page(s)

Trump v. International Refugee Assistance

Project, 137 S. Ct. 2080 (2017) «...---.-se0esereees 5, 6, 15, 22

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

Partnership, 513 U.S. 18 (1994).......+-0+ 19, 20, 21, 23

United States v. Hamburg-Amerikanische

Packetfahrt-Actien Gesellschaft, 239 US.

ABE (1916) ....cecsccesecceccecsesecsnscsneecsssenernesnnessnneeneenemncneneses 19

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

BE (1950) ......sescesseeccescesrerssseserserssnsseanensenssnenss 1, 9, 19, 22

United States v. Nixon, 418 U.S. 683 a 22

University of Texas v. Camenisch, 451 U.S. 390

(1981) ....ccccccscssssssessssecsersceenensnssnsnsnenssssenenenenensnnensnensess 11

Washington v. Trump, 2017 WL 462040

(W.D. Wash. Feb. 3, 2017) ......-.-:cssseeeeenennenenrenseseen cree 2

Washington v. Trump, 847 F.3d 1151 (9th Cir.

SII <cccsnvesnscsconccsessnscsntensnstibercsncsonssenssncnouanseneniones 2,3, 15

STATUTES, RULES, AND REGULATIONS

BU.G.C. § 1182 ....cccccseccsssscsccessssseesetenecessnensssnssessreesnenenacens 14

28 U.S.C.

§ DIOG......ccecccccccersccsccsvsscosvsccvessarevenssonsssonsossscensseessensrnsens 19

1 C.F.R.

Part 19.....cccccccccccccccsssosssscssocsesssnesecnnsssenscesentatesnsernnssesees 14

TABLE OF AUTHORITIES—Continued

Page(s)

EXECUTIVE MATERIALS

Executive Order No. 11,030, Preparation,

Presentation, Filing, and Publication of

Executive Orders and Proclamations,

27 Fed. Reg. 5847 (June 19, 1962) ..........cccsccceceseeeees 14

Executive Order No. 11,354, Amending

Executive Order No. 11030 of June 19,

1962, with Respect to the Preparation of

Presidential Proclamations, 32 Fed. Reg.

I ii iacentstiincctinacconcdnnertiierinnsantidbasonsiiée 14

Executive Order No. 13,769, Protecting the

Nation From Foreign Terrorist Entry Into

the United States, 82 Fed. Reg. 8977 (Jan.

Seas re issechisinancsiuhscisentaapeicsdtntteiieodethandiiinanadaaniaiiunlaiichaas 1,2,3

Executive Order No. 13,780, Protecting the Na-

tion from Foreign Terrorist Entry Into the

United States, 82 Fed. Reg. 13,209 (Mar. 6,

SUED bubnchstociitadanaindiadiiseeiainmiaieeniibepiaiatiaa 3, 5, 11, 12, 17, 21

OTHER AUTHORITIES

Culliford, Elizabeth, U.S. Demands Nations

Provide More Traveler Data or Face Sanc-

tions, Reuters (July 13, 2017), http://ive.

reuters.com/Event/Live_US_Polities/10121

DeChiaro, Dean, Travelers From Six Muslim

Countries Drop Without Travel Ban, Roll

Call (June 12, 2017), https://www.rolleall.com/

news/policy/travelers-six-muslim-countries-

drop-without-travel-ban.............:esscecsesesersesceceecessenes 13

TABLE OF AUTHORITIES—Continued

Page(s)

Epps, Garrett, Trump’s Limited Travel Ban

Victory, Atlantic (June 26, 2017), https://

www.theatlantic.com/politics/archive/2017/06/

the-trump-administrations-limited-victory/

SUD Aipiieibiaciidisaphaieiininasbipliaiienbiadibloniueiensaittiinedioveenn 16

Lederman, Marty, /t’s All About that Stay

(and Its Surprising Limits), Just Security

(June 26, 2017), https://www.justsecurity.

org/42550/stay-or-lack-thereof ...........ccccsssecceeeeeeeess 16

Litman, Leah, Symposium: The mootness

games, SCOTUSblog (July 11, 2017), http://

www.scotusblog.com/2017/07/symposium-

I aincccsscntncintirniciainininntaiestiinsinnninnninnanie 16

Manuel, Kate M., Congressional Research

Service, R44743, Executive Authority to

Exclude Aliens: In Brief (2017), available

at https://fas.org/sgp/crs/homesec/R44743.pdf.......... 14

Rappaport, Nolan, Travel ban issue will be

moot before SCOTUS date—here’s why,

TheHill (June 28, 2017), http://thehill.com/

blogs/pundits-blog/immigration/339825-tra

vel-ban-will-be-moot-before-it-reaches-sup

I icicttrciecitninbensisccniptnsnipianciniiunsenmnineces 16

Vil

TABLE OF AUTHORITIES—Continued

Page(s)

U.S. Citizenship and Immigration Services,

USCIS to Expand In-Person Interview

Requirements for Certain Permanent

Residency Applicants (Aug. 28, 2017),

https://www.uscis.gov/news/news-releases/

uscis-to-expand-in-person-interview-require

ments-for-certain-permanent-residency-ap

IIIT icsleacicisa ondeieelbceeneaiinicubleidagietnieiKendaitapesinalmatinntnenoniiniiiens 7

U.S. Department of Homeland Security,

Frequently Asked Questions on Protecting

the Nation from Foreign Terrorist Entry

into the United States (June 29, 2017),

https://web.archive.org/web/20170629221445/

https://www.dhs.gov/news/2017/06/29/freque

ntly-asked-questions-protecting-nation-for

eign-terrorist-entry-united-states.............ccccecceeeeee 6

U.S. Department of Homeland Security, Press

Release, DHS Statement On U.S. Supreme

Court Decision On The _ President’s

Executive Order On Protecting The Nation

From Foreign Terrorist Entry Into The

United States (June 26, 2017), https://www.

dhs.gov/news/2017/06/26/dhs-statement-us-

supreme-court-decision-president-s-

executive-Order-protecting........ccecceeecceeressccceereseneeees 8

Vill

TABLE OF AUTHORITIES—Continued

U.S. Department of State, Background

Briefing on the Implementation of

Executive Order 13780 Protecting the

Nation From Foreign Terrorist Entry Into

the United States (June 29, 2017), available

at https://www.state.gov/r/pa/prs/ps/2017/

ee asitachrsntsincniseenincaicbiidcinidnsniteiicinneccees

U.S. Department of State, Important

Announcement: Executive Order on Visas,

https://travel.state.gov/content/travel/en/

news/important-announcement.html (last

EEE cidccieientncctevirenccnsontesomniveses

U.S. Secretary of State, (SBU) Implementing

Executive Order 13780 Following Supreme

Court Ruling—Guidance to Visa-

Adjudicating Posts (June 28, 2017),

available at http://live.reuters.com/Event/

Live_US_Politices/989297085 .2000....... ccc seeees

Zapotosky, Matt, Supreme Court allows broad

enforcement of travel ban—at least for a

day, Wash. Post (Sept. 11, 2017), https://

www.washingtonpost.com/world/national-

security/justice-dept-again-asks-supreme-

court-to-allow-broad-enforcement-of-travel-

ban/2017/09/11/6c3858ae-970b-1 1le7-87fe-c3

f7ee4035c9_story.html?utm_term=.b7b0195

UIE iiinidsescnncincdniepesaiscsipudeaieinbibieinindainnisaniaciscveees

Page(s)

INTEREST OF AMICI CURIAE'

Amici curiae are legal scholars who study the scope

and limits of federal judicial power.’ Their interest in

these appeals arises from the important questions that

the appeals present in relation to mootness. Amici urge

the Court to dismiss the appeals as moot but forbear

from vacating the judgments below under the narrow

doctrine announced in United States v. Munsingwear,

Inc., 340 U.S. 36 (1950).

STATEMENT

These appeals arise from the government’s chal-

lenges to preliminary injunctions barring enforcement

of certain provisions of an executive order dated March

6, 2017 that sought to (i) temporarily ban entry into the

United States of noncitizens from several predominant-

ly Muslim countries for 90 days, (ii) suspend refugee

admissions under the U.S. Refugee Admissions Pro-

gram (“USRAP”) for 120 days, and (iii) reduce the

number of refugees to be admitted in fiscal year 2017.

A. January Executive Order

On January 27, 2017, President Donald J. Trump

signed Executive Order No. 13,769, “Protecting the

Nation From Foreign Terrorist Entry Into the United

States.” 82 Fed. Reg. 8977 (Jan. 27, 2017) (“EO-1”).

'No counsel for a party authored any portion of this brief,

and no person other than amici or their counsel made a monetary

contribution intended to fund the preparation or submission of this

brief. Petitioners have filed a blanket letter of consent. Respond-

ents the International Refugee Assistance Project and the State of

Hawaii have consented to the filing of this brief.

2 A complete list of amici is set forth in the appendix to this

brief.

The immediate effects of EO-1 included, among other

things, suspending the entry of noncitizens from seven

predominantly Muslim countries for a period of 90 days.

See EQO-1, § 3(c) (suspending entry of noncitizens from

Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen).

EKOQ-1 instructed the Secretary of State, Secretary of

Homeland Security, and Director of National Intelli-

gence to review those countries’ procedures for vetting

applicants for admission to the United States and to as-

sess the information used to determine whether noncit-

izens seeking entry posed a national security risk. See,

¢.g., id. § 3(a)-(b), (h). Other provisions of EO-1 reduced

the number of refugees to be admitted to the United

States in fiscal year 2017 from 110,000 to 50,000 and

suspended the U.S. Refugee Admissions Program

(“USRAP”) for 120 days. See EO-1, § 5(a), (c)-(d). The

President’s actions substantially effectuated his well-

publicized proposal as a presidential candidate to im-

plement a “total and complete shutdown of Muslims en-

tering the United States.” JA 478.

EO-1 was promptly challenged and, in February

2017, the U.S. District Court for the Western District

of Washington enjoined enforcement of certain provi-

sions of the order. See Washington v. Trump, 2017 WL

462040, at *2 (W.D. Wash. Feb. 3, 2017). The district

court enjoined enforcement of, inter alia, Sections 3(c)

(suspending entry from listed countries for 90 days)

and 5(a) (suspending USRAP for 120 days). The Ninth

Circuit declined to stay the district court’s decision

pending appeal. See Washington v. Trump, 847 F.3d

1151, 1169 (9th Cir. 2017) (per curiam).

No injunction issued concerning EO-1’s require-

ments relating to any internal executive review of cur-

rent procedures and informational needs associated

with the adjudication of visas, admissions, or other im-

migration benefits. See, e.g., EO-1, $§ 3(a)-(b), 3(h).

B. March Executive Order

On March 6, 2017, the President signed a second,

superseding Executive Order (“EO-2”), also captioned

“Protecting the Nation from Foreign Terrorist Entry

Into the United States.” Exec. Order No. 13,780, 82

Fed. Reg. 13,209 (Mar. 6, 2017). After the President

signed KQ-2, the government sought (and obtained)

dismissal of the Ninth Circuit proceedings relating to

EO-1 rather than seek en banc or certiorari review.

Like EO-1, EO-2 restricted entry of most nonciti-

zens from enumerated predominantly Muslim countries

for a period of 90 days “from the effective date of thie]

order.” EO-2 differed in that it did not apply to Lraq

nationals. EO-2, §2(c)’ Like EO-1, EO-2 instructed

national security agencies to conduct a review to de-

termine what information was needed to assess wheth-

er individuals seeking admission from other countries

posed a threat to national security. Jd. § 2(b). EO-2 al-

so suspended USRAP for a 120-day period “from the

effective date of th{e] order,” and reinstated the reduc-

tion to 50,000 of the number of refugees to be admitted

to the United States in fiscal year 2017. Jd. $§ 6(a)-(b).

Section 14 of EO-2, entitled “Effective Date,” provided

that EO-2 would take effect on March 16, 2017. Jd. § 14.

} £O-2 exempted several categories of persons—such as law-

ful permanent residents of the United States-—whose due process

rights the Ninth Circuit had concluded were violated by EO-1.

See Washington, 847 F.3d at 1165-1166. Alluding to these exemp-

tions, the President publicly described EO-2 as “a watered-down

version of [EO-1].” JA 183.

EO-2 was likewise immediately challenged. On

March 15, 2017, the U.S. District Court for the District

of Hawaii enjoined Sections 2 and 6 of EO-2 in their en-

tirety, including the internal review and reporting pro-

visions in, for example, Sections 2(a), (b), (d), and (e).

On the same day, the U.S. District Court for the Dis-

trict of Maryland separately enjoined Section 2(c)’s 90-

day entry ban, but unlike the district court in Hawai,

did not extend the injunction to include any of the re-

view and reporting provisions in Section 2. On May 25,

2017, the en banc Fourth Circuit affirmed the latter

ruling in relevant part. See International Refugee As-

sistance Project v. Trump, 857 F.3d 554, 604-606 (4th

Cir. 2017) (en bane) (“JRAP”). On June 12, 2017, the

Ninth Circuit lifted the injunction on enforcement of

Section 2’s internal review and reporting provisions,

but affirmed the injunction as to Sections 2(c), 6(a), and

(b). See Hawaii v. Trump, 859 F.3d 741, 757 (9th Cir.

2017).

On June 13, 2017, the government filed a consent

motion in the Hawaii case, requesting that the mandate

issue immediately so that the “Government may then

implement” the review provisions of Sections 2 and 6 of

EO-2. Consent Mot. To Issue Mandate 3-4, Doc. 316,

Hawaii v. Trump, No. 17-15589 (9th Cir. filed June 13,

2017). The Ninth Circuit granted that motion on June

19, 2017.

Since June 19, 2017, no injunction or other judicial

restraint has limited the government’s ability to im-

plement the internal executive review and reporting

procedures of Sections 2 and 6 of FO-2.

Cc. June 14 Memorandum

The government petitioned for writs of certiorari in

the Hawaii and IRAP cases and moved to stay the

lower courts’ injunctions. In opposing certiorari, re-

spondents argued that any challenge to Section 2(c) of

KO-2 would be moot before the Court could hear it be-

cause, by its own terms, Section 2(c) expired at 12:01

a.m., Eastern Daylight Time on June 14, 2017, 90 days

after the “effective date of th{e] order,” which was

12:01 a.m., Eastern Daylight Time on March 16, 2017.

E0-2, $§ 2(c), 14.

Apparently in response to that argument, on June

14, 2017, after Section 2(c) had already expired at 12:01

a.m. that same day, the President issued a memoran-

dum declaring that the “effective date” of EO-2’s en-

joined provisions would be “the date and time at which

the referenced injunctions are lifted or stayed with re-

spect to that provision.” JA 1442 (“Memorandum”). The

Memorandum further stated that it “should be construed

to amend” EO-2 “[t]o the extent it is necessary.” /d.

D. This Court’s June 26 Order

On June 26, 2017, this Court granted certiorari,

consolidated the Hawaii and IRAP appeals, and stayed

the appealed injunctions of EO-2’s operative provisions

insofar as they applied to foreign nationals with “no

connection to the United States at all.” Trump v. In-

ternational Refugee Assistance Project, 137 S. Ct. 2080,

2088 (2017) (per curiam). The Court stated:

In light of the June 12 decision of the Ninth

Circuit vacating the injunction as to § 2(a), the

executive review directed by that subsection

may proceed promptly, if it is not already un-

derway. EO-2 instructs the Secretary of

Homeland Security to complete this review

within 20 days, after which time foreign gov-

ernments will be given 50 days further to bring

their practices into line with the Secretary’s di-

rectives. §§ 2(a)-(b), (d).

Id. at 2088-2089. The Court noted that it “fully ex-

pectied] that the relief we grant today will permit the

Executive to conclude its internal work and provide

adequate notice to foreign governments within the 90-

day life of § 2(c).” Jd. at 2089.

The Court’s June 26 order also directed the parties,

in briefing the appeal, to address whether the challeng-

es to Section 2(c) became moot on June 14, 2017. 137

S. Ct. at 2086-2087. No party has argued to this Court

that the challenges are moot.

E. Implementation Of The March Executive Order

After the mandate issued in the Hawatii case on

June 19, 2017, the government began to implement the

review and reporting processes required by EO-2. On

June 29, senior administration officials confirmed that

“review of additional procedures for vetting of refu-

gees ... began ... on June 23rd."* On or about July

* U.S. Dep’t of State, Background Briefing on the Implemen-

tation of Executive Order 13780 Protecting the Nation From For-

eign Terrorist Entry Into the United States (June 29, 2017), avail-

able at https://www.state.gov/r/pa/prs/ps/2017/06/272281.htm; see

also U.S. Dep’t of Homeland Security, Frequently Asked Ques-

tions on Protecting the Nation from Foreign Terrorist Entry into

the United States (June 29, 2017), https://web.archive.org/web/

20170629221445/https://www.dhs.gov/news/2017/06/29/frequently-

asked-questions-protecting-nation-foreign-terrorist-entry-united-

states (indicating that review of the USRAP application and adju-

dication processes was “underway”).

10,° the Department of Homeland Security (“DHS”)

issued its Section 2(b) report to the President concern-

ing the results of the worldwide review described in

Section 2(a). On September 11, a spokesperson stated

that DHS would provide a further report “in the com-

ing weeks.” At that time the State Department was

“engaging with foreign governments to meet ... new

standards for information sharing.”’ At least some of

the consequences of the required review have already

emerged. For example, USCIS will begin expanding

in-person interviews for certain applicants for perma-

nent residency effective October 1 to “compl[y] with

Executive Order 13780."

The government began implementing Section 2(c)’s

90-day travel restriction within 72 hours of this Court’s

June 26 ruling—.e., no later than June 29, 2017. JA

1442; see also Opp. To Emergency Mot. 6, Hawaii v.

Trump, No. 17-50 (D. Haw. filed July 3, 2017) (Doe.

* See Culliford, U.S. Demands Nations Provide More Travel-

er Data or Face Sanctions, Reuters (July 18, 2017), available at

http://ive.reuters.com/E vent/Live_US_Politics/1012197528 (quot-

ing cable that “outlines the results of the report submitted to the

President on July 10”).

° Zapotosky, Supreme Court allows broad enforcement of

travel ban—at least for a day, Wash. Post (Sept. 11, 2017), https://

www.washingtonpost.com/world/national-security/justice-cept-again-

asks-supreme-court-to-allow-broad-enforcement-of-travel-ban/2017/

09/1 1/6c3853ae-970b-11e7-87fe-c3f7ee4035c9_ story.html?utm_term

=.b7b019502bf6.

1 Td.

S USCIS, USCIS to Expand In-Person Interview Require-

ments for Certain Permanent Residency Applicants (Aug. 28,

2017), https://www.uscis.gov/news/news-releases/uscis-to-expand -in-

person-interview-requirements-for-certain-permanent-residency-

applicants.

301). A June 26 DHS press release explained that the

“granting of a partial stay of the circuit injunctions ...

has allowed the Department of Homeland Security to

largely implement the President’s Executive Order.”

Two days later, the State Department promulgated

guidance concerning implementation of FO-2 in a cable

to visa-adjudicating posts.'° The cable stated that “im-

plementation of [EO-2] sections for which injunctions

have been lifted will begin June 29, 2017.”"'

More specifically, the cable stated that Section

2(c)’s “90-day suspension of entry will be implemented

worldwide at 8:00 p.m. Eastern Daylight Time (EDT)

June 29, 2017.”'? The June 28 cable also stated that the

USRAP refugee program “is suspended for 120 days.”"’

SUMMARY OF ARGUMENT

These appeals concern the government’s challenge

to preliminary injunctions against enforcement of three

specific provisions of EO-2. That challenge is or shortly

will be moot.

* See DHS, Press Release, DHS Statement On U.S. Supreme

Court Decision On The President’s Executive Order On Protecting

The Nation From Foreign Terrorist Entry Into The United States

(June 26, 2017), https://www.dhs.gov/news/2017/06/26/dhs-state

ment-us-supreme-court-decision-president-s-executive-order-protec

ting.

10 See Sec’y, U.S. State Dep’t, (SBU) Implementing Execu-

tive Order 13780 Following Supreme Court Ruling—Guidance to

Visa-Adjudicating Posts (June 28, 2017), available at http://

live.reuters.com/Event/Live_US_Politics/989297085.

I 7g.

12 Td.

13 7.

By their terms, two of the provisions at issue ex-

pired months ago. EO-2 states, in a provision never

enjoined by any court, that its “effective date” was

March 16, 2017. Sections 2(c) and 6(a) were due to ex-

pire within 90 and 120 days, respectively, of that effec-

tive date and those time periods now have run.

Independently, all three contested provisions of

KO-2 began to be implemented when this Court stayed

the injunctions in its June 26, 2017 decision. Even as-

suming Sections 2(c), 6(a), and 6(b) were not “effective”

until June 26, all three provisions will have run their

course before or shortly after this Court hears oral ar-

gument. The government’s challenge to the injunctions

accordingly no longer presents a live case or controver-

sy (or shortly will cease to do so), thus mooting the ap-

peals.

Given that the appeals are or shortly will be moot,

the only remaining question is whether the Court

should vacate the judgments of the courts of appeals.

The Court should not do so. The mootness of these

cases has nothing to do with the “vagaries of circum-

stance,” and everything to do with the government’s

choice to impose the restrictions in question for only a

short period, and by its conscious, strategic, and volun-

tary decisions not to expedite litigation during that pe-

riod. “The case is therefore one where the United

States, having slept on its rights, now asks [the Court]

to do what by orderly procedure it could have done for

itself.” Munsingwear, 340 U.S. at 41. Accordingly, the

correct course is to dismiss the petitions for certiorari

while leaving the judgments below in place.

ARGUMENT

I. MoorTrness Is A THRESHOLD JURISDICTIONAL ISSUE

THAT Must BE ADDRESSED BEFORE THE MERITS

The “exercise of judicial power depends upon the

existence of a case or controversy.” Liner v. Jafco,

Inc., 375 U.S. 301, 306 n.3 (1964). This requirement re-

serves federal courts’ power for controversies that are

“definite and concrete” and “touch{] the legal relations

of parties having adverse legal interests.” Aetna Life

Ins. Co. v. Haworth, 300 U.S. 227, 240-241 (19387). The

“case or controversy” requirement “defines with re-

spect to the Judicial Branch the idea of separation of

powers on which the Federal Government is founded.”

Allen v. Wright, 468 U.S. 737, 750 (1984).

Mootness doctrine bars the federal courts from

considering cases in which “the parties lack a legally

cognizable interest in the outcome.” City of Erie v.

Pap’s A.M., 529 U.S. 277, 287 (2000) (quoting County of

Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). This

Court has accordingly recognized that mootness is “a

jurisdictional question because the Court is not em-

powered to decide moot questions or abstract proposi-

tions.” North Carolina v. Rice, 404 U.S. 244, 246 (1971)

(per curiam) (internal quotation marks omitted). Be-

cause “moot questions require no answer,” Missouri,

Kan. & Tex. Ry. Co. v. Ferris, 179 U.S. 602, 606 (1900),

resolution of a controversy that has become moot

“amount[s] to no more than an advisory opinion,” which

federal courts are without power to provide, Boston

Firefighters Union Local 718 v. Bostox Chapter

NAACP, Inc., 468 U.S. 1206, 1210 (1984).

Mootness at any stage of litigation forecloses judi-

cial review—even if a justiciable question existed at an

earlier time. See, e.g., Arizonans for Official English v.

Arizona, 520 U.S. 48, 67 (1997) (“[A Jn actual controver-

sy must be extant at all stages of review, not merely at

the time the complaint is filed.”); Hall v. Beals, 396

U.S. 45, 48 (1969) (per curiam) (dispute was moot be-

cause “[t]he case [] lost ... its character as a present,

live controversy of the kind that must exist if we are to

avoid advisory opinions on abstract propositions of

law”).

Mootness may arise, as in these appeals, in the con-

text of an appellate challenge to a preliminary injunc-

tion. See, e.g., Honig v. Students of Cal. Sch. for the

Blind, 471 U.S. 148, 149 (1985); University of Tex. v.

Camenisch, 451 U.S. 390, 394 (1981). In such an appeal,

the only issue before the Court is “whether the prelim-

inary injunction should have issued.” Honig, 471 U.S.

at 149. Once the enjoined conduct has ceased, “the cor-

rectness of the decision to grant [the] injunction ... is

moot.” Camenisch, 451 U.S. at 394. Where the injunc-

tion tied to the conduct “expired by its own terms, ...

there remain for this Court no actual matters in con-

troversy.” Local No. 8-6, Oil, Chem. & Atomic Work-

ers Int'l Union, AFL-CIO v. Missouri, 361 U.S. 3638,

367 (1960) (internal quotation marks omitted); see also

Burke v. Barnes, 479 U.S. 361, 363 (1987) (legislators’

challenge to pocket veto was mooted when “{tJhe bill in

question expired by its own terms”); Alejandrino v.

Quezon, 271 U.S. 528, 532 (1926) (action to enjoin legis-

lator’s disciplinary suspension was mooted when sus-

pension expired).

Il. THESE APPEALS WILL BE Moot BEFORE (OR VERY

SHORTLY AFTER ) THE COURT HEARS ORAL ARGUMENT

A. According to EOQ-2’s stated “Effective Date,”

Sections 2(c) and 6(a) expired months ago. Section 14 of

EO-2 states that the order “is effective at 12:01 a.m.,

eastern daylight time on March 16, 2017.” EO-2, § 14.

Section 2(c), in turn, suspended entry into the United

States of designated individuals “for 90 days from the

effective date of this order.” Jd. § 2(c). Thus, as the gov-

ernment initially conceded, “Section 2(c)’s 90-day sus-

pension” presumptively “expire[d] in early June,” specif-

ically at 12:01 a.m. Eastern Daylight Time on June 14,

2017. Gov’t Stay Mot. 11, International Refugee Assis-

tance Project v. Trump, No. 17-1351 (4th Cir. filed Mar.

24, 2017) (Doc. 35). Similarly, Section 6(a) of EO-2 sus-

pended refugee travel and decisions on applications for

refugee status “for 120 days after the effective date of

this order.” On its own terms, therefore, Section 6(a)

expired on July 14, 2017. Expiration of these two provi-

sions of EO-2 mooted the government’s challenge to the

injunctions against their implementation.

The government identifies no basis for disagree-

ment with this straightforward view of the order’s

plain terms and their effect. It merely points to EO-2

itself, along with unspecified “background legal princi-

ples” and “common sense,” to support its contention

that the preliminary injunctions issued in March some-

how “delayed or tolled” the 90-day period specified in

Section 2(c). Pet. Br. 36. But nothing in EO-2 contem-

plates any delay or “tolling” of the time periods provid-

ed in Sections 2(c) and 6(a), much less suggests that

those two provisions could be tolled while other provi-

sions of EO-2 remained subject to “the effective date of

th[e] order” that the order itself specifies, 7.e., March

16, 2017. Instead, EO-2 directs that entry be suspend-

ed “temporarily” during a fixed, discrete interval com-

mencing at 12:01 a.m. Eastern Daylight Time on March

16, 2017, and ending 90 days later, to facilitate the “re-

view” described in Section 2(a)—which, as explained

above (pp. 6-8), has proceeded notwithstanding the in-

junctions. It is entirely consistent with “common

sense” to conclude that EO-2 means what it says: when

the specified interval ends, so does any suspension of

entry. The same conclusion applies equally to Section

6(a)’s suspension of refugee travel and status decisions.

That the lower courts enjoined enforcement of these

provisions should not prompt this Court to extend their

effective dates or imply a tolling provision that EO-2’s

plain terms do not contemplate. This is especially true

where the government has treated the order as “effec-

tive” all along, by implementing other, complementary

requirements of EO-2."

Nor does the President’s June 14 Memorandum

“put[] the issue to rest,” as the government contends.

Pet. Br. 37. First, the Memorandum issued on June 14,

2017, after Section 2(c)’s suspension of entry had al-

ready expired at 12:01 a.m. that same day. The Memo-

randum purported to “provide[] guidance” concerning

Section 2(c) or, if necessary, “amend” that provision

“lijn light of questions in litigation.” JA 1441-1442. But

by the time the Memorandum issued, there was no ef-

fective provision suspending entry as to which the

Memorandum could provide guidance or effect an

amendment. The government has articulated no reason

the Court should construe Section 2(c) as surviving the

very expiration that the June 14 Memorandum (belat-

edly and ineffectively) sought to address.

4 See, e.g., DeChiaro, Travelers From Six Muslim Countries

Drop Without Travel Ban, Roll Call (June 12, 2017), https://

www.rollcall.com/news/policy/travelers-six-muslim-countries-drop-

without-travel-ban (noting DHS “implemented some new vetting

procedures in accordance with a section of the March 6 order that

was not affected by the courts”; quoting DHS press secretary as

stating “‘Section 5 allows us to continue to work on uniform vet-

ting and screening procedures for all countries”).

Second, to the extent the government contends

that the Mc.norandum somehow resuscitated the de-

funct Section 2(c), or amended Section 6(a) so as to

forestall its expiration, it did neither. 8 U.S.C.

§ 1182(f), which the President invoked as authority for

issuing EO-2, requires him to act “by proclama-

tion.” Thus, the suspension power historically has been

exercised by proclamation, and in some instances by

executive order. Manuel, Cong. Research Serv.,

R44743, Executive Authority to Exclude Aliens: In

Brief 6-10 (2017) (listing executive orders and procla-

mations). Both are formal documents that require a

specific recitation and must be reviewed by the Direc-

tor of the Office of Management and Budget and the

Attorney General before they are final. See 1 C.F.R.

Part 19 (setting forth requirements for executive or-

ders and proclamations); Exec. Order No. 11,030 (gov-

erning preparation of executive orders and proclama-

tions); Exec. Order No. 11,354 (amending EO 11,030).

Plainly, the Memorandum is not a proclamation or

executive order. It omits the recitation required by 1

C.F.R. § 19.1(g), and there is no indication the Memo-

randum was subject to review by the Director of the

Office of Management and Budget and the Attorney

General. These requirements are not trivial. The D.C.

Circuit recognized as much when it rejected a challenge

to certain presidential action as insufficiently formal

because there was no “relevant statute or judicial deci-

sion requiring the President [when taking such action]

to act by Executive Order or any other formal procla-

mation.” American Fed’n of Gov't Employees, AF L-

CIO v. Carmen, 669 F.2d 815, 820 n.27 (D.C. Cir.

1981). Here, by contrast, a “relevant statute,” Section

1182(f), expressly constrains the President to proceed

formally. An exercise of the suspension power by

memorandum therefore would constitute an impermis-

sible end run around statutory requirements. The

Ninth Cireuit recognized this in rejecting a purported

modification of EKO-1 via “laluthoritative

[gluidance.” Washington, 847 F.3d at 1166. The same

fate should meet any attempt to rescue or amend Sec-

tions 2(¢c) and 6(a) of EO-2 by means other than an ac-

tual proclamation or executive order.

B. Even if the June 14 Memorandum somehow

salvaged Sections 2(c) and 6(a) from becoming moot, all

three contested provisions will cease to be effective by

the time this Court hears argument or shortly thereaf-

ter. That is because, on the government’s own reading

of EO-2 and the Memorandum, Sections 2(c), 6(a), and

6(b) of EO-2 became operative as of “the date and time

at which the ... injunctions [we]re lifted or stayed with

respect to [each] provision”—specifically, on the morn-

ing of June 26, when this Court issued its ruling staying

the appealed-from injunctions. See Trump v. Interna-

tional Refugee Assistance Project, 1837 S. Ct. 2080,

2087-2089 (2017).

Put differently, even taking June 26 (rather than

March 16) as the effective date of Section 2(c), that pro-

vision’s entry-suspension policy will lapse 90 days later,

i.é., on September 24, 2017. Similarly, Section 6(a),

which suspends the admission cof refugees under

USRAP for “120 days from the effective date of [the]

order,” will expire on October 24, 2017.'° And Section

'S Even if the Court concludes that mootness doctrine does

not prevent it from adjudicating the government’s soon-to-be-

moot challenge to Section 6(a), an important prudential question

exists whether the Court should “decide such momentous consti-

tutional issues based on a request for such narrow and temporary

relief.” ACLU v. Clapper, 804 F.3d 617, 626 (2d Cir. 2015); see

also Darr v. Burford, 339 U.S. 200, 227 (1950) (Frankfurter, J.,

6(b), which limits the entry of refugees to no “more

than 50,000 [| in fiscal year 2017” will have no effect af-

ter September 30, the last day of the 2017 fiscal year.

See, e.g., 5. Rep. No. 114-264, at 1 (2017) (“[MJaking ap-

propriations ... for the fiscal year ending September 30,

2017|.!"). Accordingly, even to the extent the provi-

sions at issue have not already expired, all three will

shortly do so, mooting the appeals.'*

As set forth in detail above (pp. 6-8), the govern-

ment’s own statements confirm that it implemented

Sections 2(c), 6(a), and 6(b) after this Court’s June 26

dissenting) (“Petitions [] have been denied because, even though

serious constitutional questions were raised, it seemed ... that

time would soon bury the question|.”).

'© See Litman, Symposium: The mootness games, SCO-

TUSblog GWuly 11, 2017), http://www.scotusblog.com/2017/07/

symposium-mootness-games/ (“(T]he case will likely be moot by

the time the court hears argument in the fall, or reaches a deci-

sion.”); Rappaport, Travel ban issue will be moot before SCOTUS

date—here’s why, TheHill (June 28, 2017), http://thehill.com/blogs/

pundits-blog/immigration/339825-travel-ban-will-be-moot-before-

it-reaches-supreme-court-heres (“This will moot the travel ban

issues before the [C]ourt reconvenes to hear arguments on the

merits of the case.”); Lederman, /t’s All About that Stay (and Its

Surprising Limits), Just Security (June 26, 2017), https://»ww

justsecurity.org/42550/stay-or-lack-thereof/ (“No, the case will be

moot for two other reasons: For one thing, the 90-day entry ban

goes into effect 72 hours from now, at least as to some aliens (see

below), and thus it will expire by its terms on September 27.

Moreover, as the Court explains, by October the Section 2 “inter-

nal review” should be completed ... and therefore the predicate for

the entry ban will be kaput by then, too.”); Epps, Trump’s Limited

Travel Ban Victory, Atlantic (June 26, 2017), https://www.

theatlantic. com/politics/archive/2017/06/the-trump-administrations-

limited-victory/531708/ (“[TyJhe court merely granted review, and

delayed actual consideration of the case until the opening of next

October’s term—by which time the specific issue will most likely

be moot.”).

order issued, conclusively demonstrating that those

provisions “took effect” no later than that date. In an

“Important Announcement” published on July 14, for

example, the U.S. Department of State’s Bureau of

Consular Affairs clarified that it “began implementing

|KO-2] at our embassies and consulates abroad in com-

pliance with the Supreme Court’s decision and in ac-

cordance with the Presidential Memorandum issued on

June 14, 2017.” U.S. Dep’t of State, Important An-

nouncement: Executive Order on Visas, https://travel.

state.gov/content/travel/en/news/important-announcem

ent.html (last visited Sept. 18, 2017).

In addition, the government has explained that

Sections 2(c), 6(a), and 6(b) were designed “to operate

in tandem with the parallel reviews,” Reply Br. in Sup-

port of Application for Stay Pending Appeal 5, pre-

scribed in EO-2 to “assess whether current ... proce-

dures are adequate to detect terrorists seeking to infil-

trate the Nation,” EQ-2, §1(f). The government has

been free to implement—and indeed has implement-

ed—those review procedures since at least June 19.

See supra pp. 6-8. The parallel review of admission

procedures that was the predicate for the contested

provisions of EQO-2 will be complete either by the time

this Court hears argument or shortly thereafter.

C. No exception to the doctrine of mootness ap-

plies. The appeals do not fall within “the established

exception to mootness for disputes capable of repeti-

tion, yet evading review.” Federal Election Comm'n v.

Wisconsin Right to Life, Inc., 551 U.S. 449, 462

(2007). That exception applies “only in exceptional sit-

uations, and generally only where the named plaintiff

can make a reasonable showing that he will again be

subjected to the alleged illegality.” City of Los Angeles

v. Lyons, 461 U.S. 95, 109 (1983). Here, the challenged

conduct is not “capable of repetition” within the mean-

ing of the exception because there is no “reasonable

showing” that similarly situated individuals “will again

be subjected to the alleged illegality.” Jd.

Although the President could theoretically issue a

new order (or extend the existing order) in the future,

“{sjuch speculative contingencies afford no basis for

[the Court’s] passing on the substantive issues ... with

respect to the’ now-expired provisions.” Burke, 479

U.S. at 364-365 (quoting Hall, 396 U.S. at 49-50); see

also Rendell v. Rumsfeld, 484 F.3d 236, 242 (3d Cir.

2007) (“[iJt would be speculation upon speculation were

one to attempt a prediction” about possible repetition);

cf. Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 123-

124 (1974) (finding policy was capable of repetition be-

cause it was not “contingent upon executive discre-

tion”). And even if any such new order (or extension of

the existing order) might overlap with the one at issue

in these appeals, it would nonetheless require a fresh

assessment by the lower courts of any material differ-

ences in the factual record and evidentiary basis for the

new (or renewed) order. See, e.g., Friends of the Earth,

Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,

193 (2000) (with respect to actions that “took place af-

ter the Court of Appe7ls issued its decision” and “the

prospect of future violations,” finding that “[tJhese is-

sues have not been aired in the lower courts; they re-

main open for consideration on remand”); Fortson v.

Toombs, 379 U.S. 621, 622 (1965) (declining to resolve

mootness issues arising on appeal where “the situation

. changed somewhat” since the trial court’s deci-

sion).!”

Ill. THE Writs Or CERTIORARI SHOULD BE DISMISSED

WITHOUT VACATING THE DECISIONS BELOW

A. The proper disposition of appeals that have be-

come moot turns on the “equitable tradition of vaca-

tur.” U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship,

513 U.S. 18, 25 (1994). The doctrine is “based solely up-

on determining what will be ‘most consonant to justice’

in view of the conditions and circumstances of the par-

ticular case,” including “the nature and character of the

conditions which have caused the case to become moot.”

United States v. Hamburg-Amerikanische Packet-

fahrt-Actien Geselischaft, 239 U.S. 466, 478 (1916)

(quoting South Spring Hill Gold Min. Co. v. Amador

Medean Gold Min. Co., 145 U.S. 300, 302 (1892)); see

also 28 U.S.C. § 2106.

One of the amici before this Court, relying on Unit-

ed States v. Munsingwear, Inc., 340 U.S. 36 (1950), as-

serts that “vacatur is the rule, and letting the lower

court decision stand is the exception.” CJLF Amicus

Br. 16. In fact, the law is to the contrary. As the Court

concluded unanimously in U.S. Bancorp, “i]t is peti-

tioner’s burden, as the party seeking relief from the

status quo of the appellate judgment, to demonstrate

not merely equivalent responsibility for the mootness,

but equitable entitlement to the extraordinary remedy

of vacatur.” 513 U.S. at 26. This principle follows not

‘7 These appeals are also not within the exception for “volun-

tary cessation,” for the straightforward reason that the relevant

provisions of EQ-2 either have expired or will soon expire by their

own terms and as intended. The government “has not voluntarily

ceased anything,” Rendell, 484 F.3d at 243, e.g., by repealing or

declining to implement the contested provisions.

only from considerations of fairness, but also because

“{jJudicial precedents are presumptively correct and

valuable to the legal community as a whole. They are

not merely the property of private litigants and should

stand unless a court concludes that the public interest

would be served by a vacatur.” Jd. at 26-27 (quoting

Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S.

Philips Corp., 510 U.S. 27, 40 (1993) (Stevens, J., dis-

senting)). Otherwise, “[t]o allow a party ... to employ

the secondary remedy of vacatur as a refined form of

collateral attack on the judgment would—dquite apart

from any considerations of fairness to the parties—

disturb the ordinary operation of the federal judicial

system.” Id. at 27; see also Alvarez v. Smith, 558 U.S.

87, 94 (2009). Thus, although there are circumstances

where a “Munsingwear vacatur” is appropriate, it is by

no means the default rule or reflexively applied.

B. When considering whether to vacate a lower

court judgment where the case has become moot on ap-

peal, “[t]he principal condition to which [this Court has]

looked is whether the party seeking relief from the

judgment below caused the mootness by voluntary ac-

tion.” U.S. Bancorp, 513 U.S. at 24. In this case, peti-

tioners’ voluntary actions are indeed responsible for the

mootness of these cases, in three respects.

First, the language of the Executive Order itself is

directly responsible for the fact that the challenge at

issue in JRAP has now become moot, and the one in

Hawaii will shortly become moot as well. Section 2(c)

specifically provides that suspension of entry of nation-

als from the six designated countries will last “for 90

days from the effective date of this order,” and Section

6(a) similarly provides for the suspension of refugee

admissions “for 120 days after the effective date of this

order.” The President adopted these time limits ex-

pressly with an eye toward litigation. See EO-2, § 1(i)

(“{I]n order to avoid spending additional time pursuing

litigation, | am revoking Executive Order 13769 and

replacing it with this order[.]”). Thus, whereas a hard-

er case might arise when voluntary actions unrelated to

the underlying litigation cause mootness, see, é.g., U.S.

Bancorp, 513 U.S. at 25 n.3, here, there is a direct and

inseparable connection between the two.

Second, the mootness of the government’s appeal of

the injunctions can also be attributed to the separate

voluntary action reflected in the President’s June 14

Memorandum, which purported to alter “the effective

date of each enjoined provision.” JA 1442. That Memo-

randum was a specific and direct response to mootness

concerns that had arisen in the litigation. See id. (stat-

ing that the memorandum was drafted “[iln light of

questions in litigation about the effective date of the

enjoined provisions and in the interest of clarity”). The

Memorandum therefore reflected a decision by the Ex-

ecutive Branch to start the relevant clocks at the mo-

ment the enjoined provisions went into effect—while

maintaining expiration periods that have now expired

or shortly will do so.

Third, although the facts just described created a

manifest prospect that the time periods specified in

EO-2 would run before resolution of the appeal, the

government did not proceed with urgency. Instead, its

litigation choices increased the likelihood of mootness.

For example, when the government noticed its appeal

in IRAP on March 17, 2017, that filing triggered this

Court’s jurisdiction under 28 U.S.C. § 1254(1), see Hohn

v. United States, 524 U.S. 236 (1998), and would have

allowed the government to petition for certiorari before

judgment under this Court’s Rule 11 and seek a stay of

the injunction pending the disposition of that petition

(and, indeed, the government filed just such a petition

in the Hawaii case). Instead, the government waited

not only until after the en banc Fourth Circuit affirmed

the injunction on May 25, but an additior.ul week there-

after before filing its petition with this Court.

Even then, while the government requested expe-

dited briefing and consideration of the petition, it did

not do so with respect to the merits. This Court took

note. JRAP, 137 S. Ct. at 2086 (“The Government has

not requested that we expedite consideration of the mer-

its to a greater extent.”). Compare Dames & Moore v.

Regan, 453 U.S. 654, 660 (1981) (in litigation arising from

Iranian hostage crisis, granting certiorari before judg-

ment and setting expedited briefing upon Solicitor Gen-

eral’s request); United States v. Nixon, 418 U.S. 683,

686-690 (1974) (government requested expedited brief-

ing, petitioned for certiorari before judgment). The gov-

ernment’s decision not to seek expedited argument,

whether before this Court’s summer recess or during a

special September sitting, guaranteed that at least 90

days would elapse between any relief on its stay applica-

tions and oral argument on the merits—with the moot-

ness consequences outlined above.

When a party decides to invade the legal rights of

another party for only a short period of time—a period

that ordinarily does not allow for the full scope of appel-

late litigation, up to and including this Court's disposi-

tion after full briefing and argument—the offending

party should not be able to have any adverse judg-

ments vacated by virtue of the facts that it chose nei-

ther to extend its conduct nor to seek fully expedited

review in this Court. “The case is therefore one where

the United States, having slept on its rights, now asks

[the Court] to do what by orderly procedure it could

have done for itself.” Munsingwear, 340 U.S. at 41.

At its core, Munsingwear stands for the proposition

that “[a] party who seeks review of the merits of an ad-

verse ruling, but is frustrated by the vagaries of circum-

stance, ought not in fairness be forced to acquiesce in the

judgment.” U.S. Bancorp, 513 U.S. at 25. The mootness

of these cases, however, arises not from the “vagaries of

circumstance,” but from the government’s strategic

choices. In such circumstances, the “equitable tradition

of vacatur” does not support that disposition.

CONCLUSION

The writs of certiorari should be dismissed as moot,

and the judgments of the courts of appeals should not

be vacated.

Respectfully submitted.

STEPHEN I. VLADECK SETH P. WAXMAN

727 E. Dean Keeton St. Counsel of Record

Austin, TX 78705 WILMER CUTLER PICKERING

HALE AND DORR LLP

OMAR A. KHAN 1875 Pennsylvania Ave., NW

JAMIE DYcus Washington, DC 20006

ADRIEL L. CEPEDA DERIEUX (202) 663-6000

RYAN CHABOT seth.waxman@wilmerhale.com

WILMER CUTLER PICKERING

HALE AND DORR LLP MARK C., FLEMING

7 World Trade Center WILMER CUTLER PICKERING

250 Greenwich Street HALE AND DORR LLP

New York, NY 10007 60 State Street

Boston, MA 02109

SEPTEMBER 2017

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APPENDICES

APPENDIX

AMICI CURIAE SCHOLARS OF

FEDERAL JURISDICTION

This Appendix provides amici’s titles and institution-

al affiliations for identification purposes only. The list-

ing of these affiliations does not imply any endorsement

of the view expressed herein by amici’s institutions.

William D. Araiza

Professor of Law

Brooklyn Law School

Karen M. Blum

Research Professor of Law

Suffolk University Law School

Joanne C. Brant

Professor of Law

Ohio Northern University Claude W. Petit College of

Law

Zachary D. Clopton

Assistant Professor of Law

Cornell Law School

Brooke D. Coleman

Professor of Law and Associate Dean of Research &

Faculty Development

Seattle University School of Law

Frank Deale

Professor of Law

CUNY Law School

Paul R. Dubinsky

Professor of Law

Wayne State University Law School

Amanda Frost

Professor of Law

American University Washington College of Law

Maryellen Fullerton

Professor of Law

Brooklyn Law School

Jonathan M. Gutoff

Professor of Law

Roger Williams University School of Law

Harold J. Krent

Dean and Professor of Law

Illinois Institute of Technology Chicago-Kent College

of Law

Alexandra D. Lahav

Ellen Ash Peters Professor

University of Connecticut School of Law

David S. Law

Charles Nagel Chair of Constitutional Law and Political

Science

Washington University School of Law

Evan Lee

Professor of Law

University of California-Hastings College of the Law

Toni M. Massaro

Regents’ Professor, Milton O. Riepe Chair in Constitutional

Law, and Dean Emerita

University of Arizona James E. Rogers College of Law

Lumen Mulligan

Associate Dean for Faculty

Earl B. Shurtz Research Professor of Law

University of Kansas School of Law

Yxta Maya Murray

Professor of Law

Loyola Law School

Deborah Pearlstein

Professor of Law

Benjamin N. Cardozo School of Law, Yeshiva University

Gowri Ramachandran

Professor of Law

Southwestern Law School

Charles W. “Rocky” Rhodes

Vinson & Elkins Research Professor & Professor of Law

South Texas College of Law Houston

Caprice Roberts

Professor of Law

Savannah Law School

Kermit Roosevelt

Professor of Law

University of Pennsylvania Law School

Lawrence Sager

Alice Jane Drysdale Sheffield Regents Chair

University of Texas School of Law

Elizabeth M. Schneider

Rose L. Hoffer Professor of Law

Brooklyn Law School

Eric J. Segall

Kathy and Lawrence Ashe Professor of Law

Georgia State University College of Law

Joan M. Shaughnessy

Roger D. Groot Professor of Law

Washington and Lee University School of Law

Andrew Siegel

Associate Professor of Law and Faculty Fellow,

Fred C. Korematsu Center for Law and Equality

Seattle University Schoo} of Law

Joan Steinman

University Distinguished Professor and Professor of Law

ilinois Institute of Technology Chicago-Kent College

ot Law

Carl Tobias

Williams Chair in Law

University of Richmond School of Law

Stephen I. Vladeck

Professor of Law

University of Texas School of Law

Howard M. Wasserman

Professor of Law

F1U College of Law

Amy J. Wildermuth

Professor of Law

University of Utah S.J. Quinney College of Law

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.