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This is the way Trump v. IRAP ends: not with a bang, but with a whimper. At least for now.

Two weeks after President Trump’s second travel ban expired, the Supreme Court vacated the Fourth Circuit’s en banc opinion with a four-sentence order. The Ninth Circuit’s judgment Hawaii v. Trump will likely be vacated in two weeks when the refugee ban expires. There was only one dissenting vote: Justice Sotomayor would have dismissed the writ of certiorari as improvidently granted without vacating the lower-court judgment.

The court’s bottom-line judgment should not come as much of a surprise. The most remarkable aspect of the unsigned order was its nonchalance:

We granted certiorari in this case to resolve a challenge to “the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780.” Because that provision of the Order “expired by its own terms” on September 24, 2017, the appeal no longer presents a “live case or controversy.” Burke v. Barnes, 479 U. S. 361, 363 (1987). Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). We express no view on the merits.

Despite thousands of pages of briefing and more than eighty amicus briefs, the justices treated Trump v. IRAP according to “established practices” as they would in any other routine case. The citation to Burke v. Barnes (1987) is instructive: That case involved a challenge to President Reagan’s pocket veto by members of Congress. However, a few weeks after the D.C. Circuit entered its judgment, the “bill in question expired by its own terms.” Chief Justice Rehnquist explained, “it is not enough that there may have been a live case or controversy when the case was decided by the court whose judgment we are reviewing.” As a result, the Supreme Court vacated the district court’s judgment under the Munsingwear decision.

In the grand scheme of the constitutional law, Burke v. Barnes was unremarkable. I had never heard of it before its citation in the solicitor general’s letter brief. In any event, the court saw Burke v. Barnes as providing the rule of decision for IRAP.

The exceptions to mootness are flexible, in light of the voluntary cessation doctrine. Further, the exceptions to the fuzzy Munsingwear doctrine are even more pliable. Hawaii and the American Civil Liberties Union offered more than enough reasons for the court to keep the case on the calendar, and in the alternative, leave the precedents on the books. If the justices indeed viewed Trump v. IRAP as the next Korematsu, such exceptions could have been found with ease. None were warranted. Not even Justice Sotomayor agreed to keep the case on the Court’s docket, though she alone would have allowed the Fourth Circuit’s decision to stand.

Monday’s unsigned order continues a trend that I have chronicled over the last three months: At each juncture where the Supreme Court had the opportunity to hand the federal government a resounding defeat—a resistance to the normalization of President Trump—the justices have declined. If the Fourth Circuit was correct that the president’s order “drips with religious intolerance, animus, and discrimination,” then jurisdiction should have been maintained under the voluntary cessation doctrine. If the Ninth Circuit was correct that the president failed to meet the statutory criteria to exclude anyone, regardless of the constitutional issues, then there was no harm in allowing the lower court decision to stand. Yet, the Fourth Circuit decision is no longer precedential, and the Ninth Circuit decision will soon be wiped from the books. As I noted in my last post, these opinions “must be quarantined as byproducts of a judicial panic that should not be cited going forward.” And they shall not be cited.

It is true that the justices assiduously maintained that they “express no view on the merits,” but at this point, who are they kidding? If any of the findings of the Fourth and Ninth Circuit had merit, the justices should be falling over themselves to uphold civil liberties and vindicate the separation of powers. That hasn’t happened.

Eventually, this case will come back to the court on the merits. But this delay was not by chance. Rather, it was part of a deliberate strategy. As I explained last month, “despite the never-ending spate of nationwide injunctions, the government has always been in the driver’s seat.” Jeffrey Wall, the former acting solicitor general, has situated the government for a victory when few predicted it was possible. Critically, rather than considering the first or second iteration of the policy, the justices will eventually consider the third, and final, proclamation. When Justice Kennedy votes to grant a stay, in almost all cases, he votes to reverse. Since he voted to grant a stay on the earlier iterations of the policy, the likelihood of success for the latest proclamation—which is highly attenuated from the initial claims of animus—is on much firmer ground, especially in light of Monday’s vacatur.

Cross-Posted at Lawfare

Today at 3:00, I will be participating in a Federalist Society teleforum on the latest developments in Trump v. IRAP and Hawaii. My goal (in roughly 10 minutes) will be to summarize the entire posture of the litigation, up to and including the Supreme Court’s recent order for additional briefing on whether the President’s latest proclamation moots the entire case. For more details in the interim, read my newest piece on Lawfare.

SCOTUSBlog published my commentary on the Court’s equitable decision in Trump v. IRAP. The bottom line is that were this a normal case, the decision to grant a stay and certiorari is recipe for reversal (at least in part).

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In Trump v. International Refugee Assistance Project, the Supreme Court stayed, in part, the judgments of the U.S. Courts of Appeals for the 4th and 9th Circuits. Though the per curiam decision quite deliberately avoided any discussion of the merits, a careful study of how its equitable analysis treated the lower-court decisions provides some hints to how the justices ultimately may rule (assuming the case is not mooted come October).

The Supreme Court announced that its equitable analysis was based on the four-factor test articulated in 2009 in Nken v. Holder: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.”

With respect to the third factor, the justices rejected the lower courts’ balancing of the harm with respect to “foreign nationals abroad who have no connection to the United States at all.” The burdens they suffer, the Supreme Court noted, “are, at a minimum, a good deal less concrete than the hardships identified by the courts below.” For this latter group, the court disagreed with the 4th and 9th Circuits’ balancing of the equities: “Denying entry to such a foreign national does not burden any American party by reason of that party’s relationship with the foreign national.” In short, the court noted, any burdens to such nationals “are, at a minimum, a good deal less concrete than the hardships identified by the courts below.”

For the second factor, the justices rejected the lower courts’ consideration of the government’s irreparable injury, especially in light of the fact that the executive order provided “a case-by-case waiver system” for such unconnected aliens. “To prevent the Government from pursuing that objective by enforcing §2(c) against foreign nationals unconnected to the United States,” the Supreme Court noted, “would appreciably injure its interests, without alleviating obvious hardship to anyone else.” Finally, with respect to the fourth factor, the court cited its 2010 ruling in Holder v. Humanitarian Law Project for the proposition that “the interest in preserving national security is ‘an urgent objective of the highest order.’” Likewise, the court relied on the 1981 ruling Haig v. Ageeto conclude that “the balance tips in favor of the Government’s compelling need to provide for the Nation’s security.”

The per curiam opinion assiduously avoided any discussion of the first factor. As I noted two weeks ago, I see this decision as something of a compromise that avoided the need for any member of the liberal bloc to record a dissent, but still gave the president more or less what he wanted. Because of this tightrope walk, it is difficult to predict how the majority would vote on the merits. Based on the practices of the Roberts court, however, the posture of this case would generally signal a reversal of the lower courts. Specifically, since Chief Justice John Roberts joined the Supreme Court in 2005, when the court grants a stay of a lower court decision and grants the petition for a writ of certiorari, in 22 out of 24 cases, the ultimate disposition is a reversal, at least in part. As a general rule, when Justice Anthony Kennedy does not dissent from the grant of a stay and certiorari is granted, the lower court will not stand.

Based on this practice, the Supreme Court’s issuance of a partial stay in the travel ban litigation would, in the normal course, signal that a majority of the court intended to reverse (at least in part) the 4th and 9th Circuits. This case, however, is far from normal. I agree with most commentators that the case will likely become moot by the time argument is held in October, so the court may have no need to weigh in again on the second executive order. But we should not lose sight of the fact that the second executive order is merely a temporary policy. There very well may be a third, permanent executive order issued over the summer. So the per curiam decision may yield useful hints of how the justices will resolve the final policy.

Some have argued that the Supreme Court’s bifurcation between those who do and do not have a bona fide connection to the United States merely reflected a judgment on standing. For example, David Cole told the Financial Times that the Supreme Court “allowed the government to bar from entry only people who were not part of the lawsuits at issue.” This is not necessarily the case.

The district court in Maryland found that because Section 2(c) of the second executive order was infected by President Donald Trump’s unconstitutional bias, “nationwide relief was appropriate.” The 4th Circuit agreed that limiting relief to the named plaintiffs “would not cure the constitutional deficiency” because “[i]ts continued enforcement against similarly situated individuals would only serve to reinforce the ‘message’ that Plaintiffs ‘are outsiders, not full members of the political community.’” Both courts agreed that the burdens suffered by all aliens – with or without connections to the United States – were of equal weight, in light of the president’s unlawful animus.

The per curiam decision issued a subtle rejoinder to these conclusions. At the bottom of page 10, the Supreme Court cited Kleindienst v. Mandel in its discussion of the lower courts’ finding of a hardship for “people or entities in the United States who have relationships with foreign nationals abroad, and whose rights might be affected if those foreign nationals were excluded.” Those were precisely the facts of Mandel, in which Americans were burdened by the denial of entry of a Belgian Marxist scholar. On the next page, the justices noted that the lower courts “did not conclude that exclusion [for unconnected aliens] would impose any legally relevant hardship on the foreign national himself.” To support that observation, the per curiam decision cited Mandel for the proposition that “an unadmitted and nonresident alien … ha[s] no constitutional right of entry to this country.”

Both of the appellate court rulings, however, were in no way dependent on whether aliens had a “constitutional right of entry.” The crux of the 4th Circuit’s decision was that Trump’s statements – both before and after the inauguration – demonstrated that the executive order “drips with religious intolerance, animus, and discrimination.” The en banc court added that “EO-2 cannot be divorced from the cohesive narrative linking it to the animus that inspired it.” It was on this basis that the court of appeals affirmed the district court’s nationwide injunction, as applied to unknown aliens who otherwise had “no constitutional right of entry.”

Likewise, the 9th Circuit’s decision was premised on the fact that the executive order failed to meet the requisite burden of proof under 8 U.S.C. § 1182(f) to exclude anyone, even unknown aliens who otherwise had “no constitutional right of entry.” The panel reasoned that “narrowing the injunction to apply only to Plaintiffs would not cure the statutory violations identified, which in all applications would violate provisions of the INA.” In both cases, the executive order was void “ab initio,” or from the outset – on constitutional or statutory grounds – regardless of whom it affected.

The per curiam decision is in some tension with both of these findings. The Supreme Court observed that the “Government’s interest in enforcing §2(c), and the Executive’s authority to [deny entry to unconnected aliens], are undoubtedly at their peak when there is no tie between the foreign national and the United States.” The lower courts, to the contrary, concluded that this “interest” was trivial, if not non-existent. For example, the 4th Circuit stated that the order’s “asserted national security interest” to exclude all covered aliens, regardless of their bona fide connections, was a “post hoc, secondary justification for an executive action rooted in religious animus and intended to bar Muslims from this country.” Reasoning that “[t]he public interest is served by ‘curtailing unlawful executive action,’” the 9th Circuit discounted the government’s interest in national security because “the President must nonetheless exercise his executive power under § 1182(f) lawfully.”

If the 4th Circuit is correct that the entire executive order is tainted by unconstitutional animus, then the government’s interest in enforcing it as to all aliens would indeed be nonexistent. The government has no interest in implementing an unconstitutional policy, even if certain parties lack standing to challenge it. Likewise, if the 9th Circuit was correct that the entire executive order was unlawful because the president lacked the statutory authority to promulgate it, then the government’s interest in enforcing the order as to all aliens would also be nil. The government cannot act unlawfully, even if other parties lack standing to challenge the government’s action. The Supreme Court’s per curiam decision, which allows the order to be enforced against some aliens, does not support either conclusion.

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I don’t pretend that the Supreme Court’s carefully drafted opinion was designed to opine on the merits of the case. Yet the balancing of the equities here is in tension with the core of the rulings from the 4th and 9th Circuits, and with Mandel itself. And, in light of what I’ve dubbed the Kennedy rule, were the court to rule on the merits of this case after oral argument, a reversal would be more likely than not.

76. Although Mr. Elshikh, his wife, and their children are all American citizens, and although Mr. Elshikh’s wife’s I-130 Petition was granted, the Executive Order will prevent Mr. Elshikh’s mother-in-law from visiting her family in Hawai‘i. She last visited the family in 2005, when she stayed for one month. She has not met two of Mr. Elshikh’s children, and only Mr. Elshikh’s oldest child remembers meeting her grandmother. The family is devastated.

The petition was not granted based on the fact that the woman was the mother-in-law of Dr. Elshikh. Rather, it was granted because Dr. Elshikh’s wife submitted the petition for her mother. Due to this close relationship from a U.S. citizen child, the visa was immediately available. In other word, Ms. Elshick petitioned for her mother to receive a visa. Thus, the mother has the requisite relation, and would be exempted from the travel ban. Again, to prove the point that our immigration law routinely favors the nuclear family, an I-130 petition can only be filed on behalf of spouses, children, siblings, or parents–not in-laws or grandparents.