In a post last week, I discussed how even if President Trump replaced his enjoined executive order with a new one, the current litigation in the Western District would not necessarily be mooted. Under the “voluntary cessation” doctrine, courts can maintain jurisdiction over challenged conduct, even when a public official has stated that it will no longer engage in such conduct.
This hypothetical question will soon become real. The Wall Street Journal reported that the President will rescind the older executive order, and issue a new one–as soon as Tuesday!–with several key differences. First, the order will not deny entry for lawful permanent residents. (As I discuss in my essay on the case, the best reading of the statutory scheme is that 1182(f) does not apply to green-card holders; now they will be expressly excluded.). This modification will remove the strongest basis for relief for Washington, as LPRs have the closest connection to the United Second, and thus the strongest conceivable constitutional interests. The 9th Circuit’s discussion of due process rights for aliens with zero attachment to the United States was anemic.
Second, the order will eliminate the preference for religious minorities. This change will make the four-corners of the document less susceptible to an Establishment Clause or Equal Protection challenge (the two analyses are virtually identical). However, if the 9th Circuit follows through on its pretext dicta, nothing the President can ever do can forgive statements made by candidate Trump and surrogate Rudy Giuliani. The policy will forever be tinged by the allegation of animus. I find this conclusion really, really hard to sustain–especially if changes are made to the policy to make it even more neutral. Can it really be the case that everything President Trump does will forever be tainted in this sense?
Third, the new order will no longer scrap the Syrian refugee program, but instead impose a lowered admission ceiling of 50,000 for 2017. I’m not sure if this makes much of a difference from a constitutional perspective. Neither Washington nor the 9th Circuit mustered an iota of precedent to support the proposition that aspiring refugees have any liberty interests protected by the Due Process Clause. My reading of the caselaw is that refugees are here but for the grace of the United States, and that grace is purely discretionary. They do not even receive visas, which would allow them to raise a claim under 8 U.S.C. 1152. (Aliens who receive non-immigrant visas would be in a similar boat, though they may have some cognizable due process interests).
Fourth, WSJ hints at one more change that I alluded to in my essay:
The appellate court also criticized the order for lacking due process for those affected. Giving notice before it take effect could address that, at least in part.
In Kerry v. Din, a former civil servant for the Taliban was denied a visa pursuant to 8 U.S.C. § 1182(a)(3)(B), because he engaged “terrorist activities.” No further explanation was given. This, Justice Kennedy found in his concurring opinion, was all the process that is due. With respect to the new executive order, all the process that is due is a notification that an alien was denied entry pursuant to the authority delegated by 8 U.S.C. 1182(f). That’s it. As I discuss in my essay:
There was not even the slightest hint in Din that aliens overseas are entitled, in the words of the Ninth Circuit’s panel, to “notice and a hearing prior to restricting” her “ability to travel. This holding is made up out of whole cloth. Even if the aliens covered by the Executive Order are protected by the Due Process Cause—a striking proposition with respect to refugees in particular, who have no connection to the United States—then there is no conceivable requirement that they be afforded a hearing before being denied entry. A consular stamp that says “denied under § 1182(f)” will provide all the process that is due. The end result of the court finding that a due process right attaches yields the same end result: the President can deny entry through a consular notification that the alien is barred by his proclamation under § 1182(f). Here, the panel opinion collapses under its own weight.
Immediately after the new order is issued, we will all need a crash course in the voluntary cessation doctrine. Unfortunately for those seeking clarity, the voluntary cessation doctrine is extremely pliable. The entry in Wright & Miller (13C Fed. Prac. & Proc. Juris. § 3533.7 (3d ed.)) on “discontinued official action” is nearly 40,000 words long. I will attempt to synthesize the doctrine here.
Under this doctrine, courts must make a prediction of whether “there has been complete discontinuance, whether effects continue after discontinuance, and whether there is any other reason that justifies decision and relief.” Here, “defendants continue to carry the burden of demonstrating that discontinuance has mooted the case.” However, unlike private defendants, “Courts are more likely to trust public defendants to honor a professed commitment to changed ways.” For example, the 5th Circuit observed in Sossamon v. Texas:
“[G]overnment actors * * * in the exercise of their official duties are accorded a presumption of good faith because they are public servants, not self-interested private parties. Without evidence to the contrary, we assume that formally announced changes to official governmental policy are not mere litigation posturing.” The defendants carried this “lighter burden.” The good-faith nature of the change was buttressed by the fact that it was adopted on a state-wide basis after the defendants had prevailed in the district court. Sossamon v. Lone Star State of Texas, 560 F.3d 316, 324-326 & n.14 (5th Cir. 2009), citing Wright, Miller & Cooper, cert. granted in part, 130 S. Ct. 3319, 176 L. Ed. 2d 1218 (2010).
But this presumption is not absolute. “The tendency to trust public officials is not complete, however, nor is it invoked automatically.” Some courts have rejected mootness claims where “the official defendants simply cannot be trusted to continue the patterns of behavior adopted in response to private challenge and judicial inquiry.” To this point, “Experience has proved that if public officials can be trusted more readily than private defendants, they cannot be trusted with the power to moot judicial proceedings simply by professing that they have mended their ways.” What truly complicates this case is that the parts of the challenged practice are abandoned, but other parts remain.
Further, due to the strange posture of the case, it isn’t even clear to me which court would apply this doctrine. Judge Robart has announced that because the Circuit Court treated his TRO as a preliminary injunction, the proceedings in the lower court are stayed. The Ninth Circuit also put its en banc proceedings on hold. The government stated that it would notify the 9th Circuit when a new executive order is entered. It is entirely conceivable for the en banc court to request supplemental briefing about how the new order affects the current injunction. It is entirely conceivable for the en banc court to hold that, under the doctrine of voluntary cessation, the case is not moot, and oral arguments can continue. No doubt, other jurisdictions will file suit in other circuits, thus germinating this issue up to SCOTUS. Thus, there may be an incentive to keep this case at the 9th Circuit, so to lead the pack.
Stay tuned.