President Donald Trump's ban on issuance of visas to citizens of six majority-Muslim countries expired last week and was replaced by a new policy putting varied limits on nationals from eight countries. | Evan Vucci/AP Trump administration asks Supreme Court to dump travel ban cases Justice Department also wants lower-court rulings wiped out.

After asking the Supreme Court to step in to rescue President Donald Trump's travel ban executive order, the Justice Department is now asking the justices to drop the issue as moot.

Solicitor General Noel Francisco told the justices Thursday that the expiration of key provisions in Trump's order and his recent retooling of the policy mean there is no need for a Supreme Court showdown over what critics have called the president's "Muslim ban."


"The United States submits that both of these appeals are now or soon will be moot," Francisco wrote in a letter to the high court.

Trump's ban on issuance of visas to citizens of six majority-Muslim countries expired last week and was replaced by a new policy putting varied limits on nationals from eight countries. A halt on admission of refugees remains in place, subject to court-ordered exceptions, but is set to run out Oct. 24.

The Supreme Court scrubbed highly-anticipated oral arguments that had been scheduled for next Tuesday, leading some experts to speculate that the justices hope to avoid grappling with some of the central issues in the case — including whether Trump's polarizing campaign-trail language about Muslims can be used to invalidate his policies as president.

However, the justices still have to decide whether to vacate or leave in place two appeals court rulings that found Trump's previous policy appeared to be illegal.

POLITICO Playbook newsletter Sign up today to receive the #1-rated newsletter in politics Email Sign Up By signing up you agree to receive email newsletters or alerts from POLITICO. You can unsubscribe at any time. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

"The decisions below have the potential for seriously problematic 'prospective effects,'" Francisco warned, quoting an earlier Supreme Court case. The 9th Circuit's ruling that Trump lacked authority to take the actions he ordered in March runs ignores "longstanding government practice" and the 4th Circuit "ruling finding anti-Muslim animus likewise risks undermining the President's ability to conduct foreign policy and protect national security in a critical region of the world," the newly-minted solicitor general added.

People who challenged the travel ban in court argued in Supreme Court filings Thursday that the justices should leave those lower-court decisions in place, saying Trump indicated earlier this year in a tweet that he would like to impose a much tougher version of the travel ban.

"Even if the Court were to find that the existing controversy is or soon will be moot, it should leave the lower court decisions in place," wrote Neal Katyal a lawyer for the State of Hawaii and a local Muslim Imam who joined together in a suit against Trump's initial orders. "It would be profoundly inequitable to permit the Government to control the timing of the case in this manner and then to use any resulting mootness to obtain the very relief it sought on the merits: vacatur of the injunction."

Katyal asked that arguments in the cases be returned to the court's schedule and that a decision be rendered on the merits. Failing that, he urged the court to simply undo its earlier decision to take the cases and leave the legal status quo in place.

Normally, courts do not wipe out prior decisions in a case where the party whose actions are being challenged simply stops those practices, because the party who appears to be losing could try such a gambit to try to wipe out an unfavorable ruling.

However, the Justice Department argues that nothing in Trump's executive order was prematurely cut short. Instead, the plan from the outset was for a short-term halt to visa issuance and refugee admissions in order to allow a study of vetting practices. Those reviews have now run their course and new procedures are being put in place, the administration contends.

"The mooting events in these appeals—the time limits that were features of the Order from the start—were unrelated to the litigation and certainly not an attempt to evade judicial review," Francisco argued in the letter filed Thursday.

But a lawyer representing refugee assistance groups and individuals who challenged the travel ban in a Maryland federal court noted that the government passed up a chance to ask the court to resolve the issue before it left for its traditional summer break at the end of June.

"The government’s own choices in shaping the bans at issue and litigating this case have resulted in the expiration and replacement of the [six-country visa] ban before this Court could hear the merits of the government’s appeal," the American Civil Liberties Union's Omar Jadwat wrote in the letter he submitted Thursday. "Where the appealing party’s own conduct moots an appeal, the exceptional equitable remedy of vacatur is not warranted. The decision of the court below should be left intact."

The Trump administration indicated it is concerned that the 4th Circuit and 9th Circuit rulings could impact litigation the federal government is already facing over the third iteration of the travel ban issued in a presidential proclamation Sept. 24.

Even if the Supreme Court declares the case moot and erases the earlier decisions relating to Trump's March travel ban order, the legal decks will not be swept completely clear.

In February, a three-judge panel of the 9th Circuit blocked the travel ban Trump issued a week after taking office. Justice Department lawyers indicated earlier this year that they wanted that decision wiped out after Trump decided to rewrite his order.

However, for tactical reasons, federal government attorneys dropped that request in order to close out that particular court challenge. As a result, the February ruling remains on the books. It would not be disturbed by any Supreme Court order in the pending cases and could be cited as precedent even if the justices vacate the more recent appeals court decisions.

