This column by ACRU Fellow Ken Klukowski was published March 6, 2017 by Breitbart.
President Donald Trump’s new executive order (EO) concerning immigration from terror-prone nations explicitly revokes EO 13769, which was the basis for all the current legal challenges. As such, all of the cases currently in the federal courts must be dismissed.
Trump issued EO 13769 on Jan. 27, 2016. (This should not be confused with EO 13768, which was a separate earlier order on deporting criminal aliens and defunding sanctuary cities.) The travel EO resulted in over 20 lawsuits nationwide. These included one brought by the states of Washington and Minnesota, in which a federal judge garnered national attention by blocking the EO nationwide, a ruling affirmed by the U.S. Court of Appeals for the Ninth Circuit.
Section 1 of Trump’s new executive order, EO 13780, explicitly revokes and replaces EO 13769. Consequently, all of the current lawsuits must be dismissed.
Article III of the Constitution provides that anyone invoking the jurisdiction of a federal court (typically the plaintiff in a lawsuit) must demonstrate three things to have standing to sue: (1) a concrete personal injury, (2) that is traceable to the defendant, (3) which the court can remedy by granting the relief requested by the plaintiff.
Supreme Court precedent should have required the initial lawsuit to be dismissed for lack of standing, and federal law required the Ninth Circuit to decline to take up the appeal.
Those lower courts did not do so, but all that is past, because under those same Article III constitutional principles, any case based on a supposed injury arising from EO 13769 is now moot, as that order is no longer in force.
It is very likely that new plaintiffs will claim to be injured by EO 13780. But all such alleged injuries can only be the basis for new lawsuits in the future. They cannot be imported into existing lawsuits. The current lawsuits should all end.
If any federal court refuses to dismiss a lawsuit based on the old executive order, then that may be the first issue on this controversy to reach the Supreme Court.