President Trump has issued this Executive Order titled, "Presidential Executive Order on Protecting the Nation from Foreign Terrorist Entry into the United States." Section 13 provides:
When a case becomes moot pending review, the lower court decision should be vacated and cease to have effect as precedent. This is called the Munsingwear rule. "The point of vacatur is to prevent an unreviewable decision 'from spawning any legal consequences,' so that no party is harmed by what we have called a 'preliminary' adjudication." Camreta v. Greene, 563 U.S. 692, 713 (2011), quoting United States v. Munsingwear, Inc., 340 U. S. 36, 40-41 (1950).
In other words, the rule facilitates getting rid of bad law that can no longer be reviewed. It also provides fodder for bad jokes about Munsingwear briefs.
The Ninth Circuit should grant rehearing en banc on the prior case, vacate as moot, and wipe that precedent off the books. If someone wants to challenge the new order, that is a new case.
And Congress still needs to do something about venue and judge shopping.
Sec. 13. Revocation. Executive Order 13769 of January 27, 2017, is revoked as of the effective date of this order.Daniel Nasaw describes the differences in the old and new orders for the WSJ.
When a case becomes moot pending review, the lower court decision should be vacated and cease to have effect as precedent. This is called the Munsingwear rule. "The point of vacatur is to prevent an unreviewable decision 'from spawning any legal consequences,' so that no party is harmed by what we have called a 'preliminary' adjudication." Camreta v. Greene, 563 U.S. 692, 713 (2011), quoting United States v. Munsingwear, Inc., 340 U. S. 36, 40-41 (1950).
In other words, the rule facilitates getting rid of bad law that can no longer be reviewed. It also provides fodder for bad jokes about Munsingwear briefs.
The Ninth Circuit should grant rehearing en banc on the prior case, vacate as moot, and wipe that precedent off the books. If someone wants to challenge the new order, that is a new case.
And Congress still needs to do something about venue and judge shopping.
