The Supreme Court of the United States

In re: Executive Order “Securing America’s Energy Future” (July 8, 2018).

Case № 18–15.

BSDDC, J., delivered the opinion of the Court, in which RestrepoMU, Notevenalongname, Wildorca, and WaywardWit, JJ. join. Chief Justice Raskolnik dissents.*

I

In early July, President Nonprehension issued an Executive Order called “Securing America’s Energy Future.” Exec. Order “Securing America’s Energy Future” (2018). (“the Executive Order”). Citing the failure of coal companies to comply with employment and environmental regulations, the President ordered all coal mines inspected. Id. If the mines were essential for regional or national energy production, operated in violation of federal regulations, or vulnerable to security risks, then the mines were to “be seized by the National Guard.” Id.

The National Guard and the Department of Energy would run the mine post-seizure. Id. The President also created a brand-new group within the National Guard to carry out the order, known as the “National Service Corps.” Id. The order went into effect immediately, and presumably the National Guard prepared to carry out the President’s orders.

Dixie filed suit the next day. Pet’n for Cert. The State argued that the President lacked the authority under 10 U.S.C. § 275 and had violated the posse comitatus act. We granted review, but limited our scope to the question of whether the Executive Order was lawful. In response, the President withdrew the Executive Order because his “cowardly legal experts” informed the President that the order “was ‘under no circumstances legal.’” Press Release, The White House (July 9, 2018). That was good legal advice.

The Attorney General then informed the Court that the order would not be defended, and represented that the case was moot.

Next, the Court inquired into the status of the case in light of the voluntary cessation doctrine. The President maintains that this case is moot. Dixie disagrees. We granted a preliminary injunction preventing enforcement while we extended review, and now hold that this case is not moot and that the Executive Order was unlawful.

And so, we enjoin enforcement of the order or any of the actions described in the Executive Order permanently. The Government retains the ability to petition this Court in equity for modification of the injunction.

II

First, we hold that today’s case is not moot. The Dissent writes as though we are necromancers reviving this case from the dead. Not so. This case never died; instead, it was a paradigmatic example of unilateral and voluntary cessation.

A.

The jurisdiction of the federal courts is limited to live controversies. If the underlying case is no longer active, then it follows that the case must be dismissed. See U.S. Const. art. III, cl. 1. (extending the judicial power to “cases” and “controversies”). As we have held, a case that is moot is no longer within the jurisdiction of the United States federal courts. Id.; see DeFunis v. Odegaard, 416 U.S. 312 (1974).

There are both constitutional and pragmatic aspects of the mootness limitation. The doctrine prevents the courts from expanding beyond their role of resolving disputes, and in that sense represents an important balance against unrestrained judicial power. See generally, Baker v. Carr, 369 U.S. 186 (1962). There are also pragmatic reasons for restricting the federal courts’ jurisdiction to active cases. It ensures that the parties have a stake in the litigation, bring forward the best arguments, and that they are not gaming the system. See generally, United States v. Munsingwear, Inc., 340 U.S. 36 (1950).

B.

As with all great legal rules, there are equally important exceptions to the mootness doctrine. These exemptions are long-standing and as crucial to the separation of powers as the mootness doctrine itself. For example, the voluntary cessation doctrine prevents parties from evading a court’s scrutiny. Iron Arrow Honor Society v. Heckler, 464 U.S. 67 (1983); Vitek v. Jones, 436 U. S. 407 (1978).

When a challenged action is revoked solely because of ongoing litigation, the case is usually not moot. In fact, if there is nothing preventing the party from simply engaging in the challenged conduct again, the federal courts jurisdiction remains. Otherwise, a President could, for example, issue an order, and rescind the order once a case is filed only to reissue the order once the case has been dismissed.

The voluntary cessation doctrine reflects the same constitutional and pragmatic concerns underpinning the case or controversy requirement. Constitutionally speaking, it prevents the executive from immunizing their actions from review by ending the challenged practice but then reinstating after a case is dismissed. That is an important check on the executive branch, and the courts would be rendered completely impotent without it.

The voluntary cessation doctrine also has pragmatic purposes, reflecting the commonsense idea that strict application of the mootness doctrine would subject the courts to abuse should a party simply restart their challenged actions after dismissal. Preventing that gamesmanship is vital to an efficient court system. Allowing parties to end a case by promising to never act badly again invites parties to abuse the courts.

To be sure, previous examples of the mootness doctrine show that the case at bar is exceptional. See, e.g., In re: Atlantic commonwealth A.B. 152 “Means of Production Act,” no. 18–03 (U.S. 2018) (challenged law repealed); Comped v. Supreme Court of the Atlantic Commonwealth, no. 17–13 (U.S. 2017) (parties settled the dispute); Bmanv1 v. Bigg_Boss, no. 17–11 (U.S. 2017) (dispute ended before review extended); DeFunis, supra; Iron Arrow Honor Society, supra. Any results to the contrary, see, e.g., In re: Western State Executive Order 44, no. 17–09 (U.S. 2017), were wrong when decided, and to the extent they conflict with our holding today they are, and should be, overruled.

Voluntary cessation will not normally moot a case. Conversely, if the underlying statute being challenged is repealed or is no longer in effect, then generally speaking the case is moot. See Burke v. Barnes, 479 U.S. 361 (1987). But here we deal with an Executive Order — a unilateral action — which is subject to the full scrutiny of the voluntary cessation doctrine.

C.

Amici points us to the case Friends of Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167 (2000), as a reason to hold this case moot. But as we wrote in Laidlaw, a “defendant’s voluntary cessation of a challenged practice ordinarily does not deprive a federal court of its power to determine the legality of the practice.” (citing City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)). Showing non-recurrence is a “formidable burden” to bear. Id. After all, the Laidlaw Court itself found that the voluntary cessation exception applied in that facility licensing case there even though the plant at issue was permanently closed. Id. As we held, it was not “absolutely clear” that the same violation could not occur. Id. So too here.

Amici and the Dissent would find otherwise, because the “President’s decision to repeal the [Executive Order] was” a “voluntary action, and it is absolutely clear he would not put the [order] back in force upon a dismissal of the case.” Moreover, the Dissent argues that we have no evidence of recurrence. That argument misses the point; the burden to show non-recurrence lies with the ceasing party.

The question is: has the President shown that it is “absolutely clear” the order will not reissue? Amici and the Dissent are satisfied. But why though? What evidence can they point to? True, the President has rescinded the order. But that has never satisfied the “formidable burden” required by the voluntary cessation rule.

In Iron Arrow Honor Society, supra, the voluntary cessation of a third party rendered a case moot. In Already LLC v. Nike we unanimously held that a covenant to not sue was sufficient evidence to meet the burden. 568 U.S. 85 (2013). In Comped v. Supreme Court of the Atlantic Commonwealth we dismissed a case as moot once the parties reached a settlement. Comped, supra. In contrast, our case involves a party defendant, and there is no settlement or agreement to not sue in the record. Thus, the facts of Nike, Iron Arrow Honor Society, and Comped, are unhelpful today. Instead, this case is more analogous to Laidlaw.

In Laidlaw the entire facility was shuttered, and yet the controversy remained. The ceasing defendant did not carry their heavy burden to show non-recurrence. Here, the President remains in office and the executive branch thankfully remains open. There are no restraints preventing the President from simply reissuing the challenged order should we dismiss. In fact, the President stated that the rescission was because of “cowardly” legal advice. Press Release, The White House (July 9, 2018). While we give great weight to the other branches of government, the fact remains that the President bears the heavy burden of showing non-repetition.

But as we have shown, the President has not introduced evidence of why the order will not reissue. The heavy burden the President bears is showing that repetition of the order is “absolutely” not going to happen, and that burden will not be satisfied by rescinding the challenged order.

D.

We share the Dissent’s concern for maintaining the federal courts’ role as dispute adjudicators. See Hart, Wechsler, Fallon, et al, The Federal Courts and the Federal System (7th ed., 2015). Out of respect for that role, we will not allow parties to unilaterally game the jurisdiction of the federal courts.

Thus, this Court has long adhered to the voluntary cessation doctrine. It is easy to see why. Imagine a hypothetical case, in which the owner of a restaurant decides to violate Title VII by refusing to hire women. He has published this policy, and insists that it will be enforced.

Our plaintiff applies for a job, only to be told that the restaurant does not hire women. She challenges the clearly discriminatory practice and seeks only injunctive relief. In response, the employer rescinds the policy because their counsel says that it was illegal. But the employer introduces no other evidence of permanent cessation.

Rigid application of the mootness doctrine would mean we had to dismiss the hypothetical case. In contrast, our precedent and common sense require the employer to make a formidable argument showing that the case is actually moot. And as applied here, the President’s showing is insufficient to meet that burden.

Again, we emphasize that the legislative repeal of a challenged law will generally render a case moot. But when the only limit on the action recurring is executive whim, the voluntary cessation doctrine will typically sustain the case as justiciable.

In other words, we are unconvinced that the Executive Order will “absolutely” and clearly not be reimplemented (pardon the double negative!). Accordingly, we hold that the case at bar is not moot, and we will proceed to the discussion of merits.

III

Second, we hold that the President lacked the authority to enact the Executive Order. Under 10 U.S.C. § 275 the executive branch may issue regulations but may “not include or permit direct participation by a member of the Army . . . in a search, seizure, arrest, or other similar activity unless participation in such activity . . . is otherwise authorized by law.”

As we held in Horizon Lines v. President Bigg-boss, “[i]t is on the Government to demonstrate that the President’s action was in compliance with his purported authority.” Nos. 17–07, 17–08, 101 M.S. Ct. 103 (2017). The Government, as noted, has declined to defend the Executive Order here. The only evidence presented is § 275. Thus, we simply ask whether the order was in compliance with 10 U.S.C. § 275.

The Executive Order required the National Guard to search and seize coal mines. Under § 275, the National Guard — a division of the army — is forbidden from carrying out searches and seizures. The President and his counsel did not cite any statutory authority for the action before this Court. Thus, we hold that the Executive Order was not only lacking authority, but was, in fact, unlawful under § 275.

We find in favor of the Petitioner, and hold the President’s action void. Enforcement of the order is permanently enjoined. As we noted when we granted the preliminary injunction, compliance with our holding today should be easy considering the President has withdrawn the order.

IV

Today’s case is not Frankenstein’s monster. See Mary Shelly, Frankenstein (1818). We will not reanimate what should remain dead. But when a defendant unilaterally ceases their challenged activity, our precedent requires us to make sure the case is really at an end. “When in doubt” the courts cannot “be stingy” with their review. See Zombieland (Colombia Pictures 2009)(survival rule two). Otherwise the courts will invite abuse, inefficiency, and gamesmanship.

In sum, we hold that the case before us is not moot. And as we have explained, the President’s order was unlawful and void. Thus, we enjoin the actions described in the Executive Order permanently. The Court retains its jurisdiction in equity should the Respondent wish to modify or terminate the injunction in the future.

It is so ordered.

Raskolnik, CJ, dissenting.

I cannot join the Court’s opinion in this case, as I believe it should never have been rendered. The majority predicts future events in a way that can only be described as arbitrary. In so doing, the Court has thrown aside our mootness doctrine, and seeks to change itself into something that it was never intended to be: an advisory board for the executive branch.

I therefore respectfully dissent.

I.

On July 8, 2018, President Nonprehension signed an Executive Order entitled “Securing America’s Energy Future” (the “EO”). The EO’s stated purpose was to address what the President perceived to be significant problems with the conduct of various coal mining companies, sufficient to endager the United States’ energy independence. The solution the EO sought to implement was to nationalize various state National Guard units to take over operation of various coal mines, transfer those mines’ employees to federal service, and organize a plan with various other federal agencies for winding down all coalmining operations in the United States within five years.

The present challenge was submitted to us the day after the EO was signed, and we granted certiorari the day after that, on July 10.

While arguments were being made, the President evidently sought his own counsel, who, according to a later statement, advised him that the EO was unlikely to pass constitutional muster. See EO: Update on Securing America’s Energy Future, Statement made to the White House Press Corps by President Nonprehension, July 10, 2018.

In a reply to a question by Petitioner, the President then stated that “this is being reinstated just for the sass.” Comment by President Nonprehension, July 10, 2018.

The question now before us is whether the challenge to the EO is mooted by the President’s decision to rescind it.

II.

For as long as this Court has existed, its decisions have been limited to active cases or controversies. That is at the core of our essence. US Const. Art. III, §2. This Court has never been in the business of opining on questions that are not at issue at the time of our decision is to be rendered. We have defined the scope of our jurisdiction in these terms time and again:

The power of courts, and ultimately of this Court, to pass upon the constitutionality of acts of Congress arises only when the interests of litigants require the use of this judicial authority for their protection against actual interference. A hypothetical threat is not enough.

United Public Workers of America v. Mitchell, 330 U. S. 75, 89–90 (1947). Or as stated even earlier, the courts (including this one) have no power to declare void any government action “except as it is called upon to adjudge the legal rights of litigants in actual controversies.” Liverpool, N.Y. & P. S.S. Co. v. Commissioners, 113 U. S. 33, 39 (1885) (emphasis added).

Once a challenge law no longer exists, there is no such controversy. “We review the judgment below in light of the [law] as it now stands, not as it once did.” Hall v. Beals, 396 U. S. 45, 48 (1969).

It is true that “a defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 190 (2000). However heavy that burden may be, the Court in its decision has exploded the standard to the point that it is meaningless.

Simply put, there is no reason to think the EO will return. While the President did say that it was reinstated “just for the sass,” this does not actually make it so. In the 18 days that have passed since he made this statement, the President has signed nothing, has made no statement, and has taken no action to suggest that he believes the EO to be in place. Nor has any other arm or agent of the Government. Indeed, the only body in the entire system that is treating the EO as if it were still anything but another entry in the National Archives is the Court today.

But nothing ever comes free, and the Court gives with one hand and takes with other. By breathing life back into the EO for the purposes of adjudication (only to then strike it down anyway), the Court must choose whence that energy comes. And its target is clear: the entire concept of mootness. Reviving something that is long dead is no mean feat, and so it is unsurprising that it would take such a large donor. The standard the Court adopts today amounts to saying that if any law is rescinded or expires, the Court will not hold it to be moot if its Members can imagine some scenario where the law would return. Any law or executive order may be passed again, even if the circumstances that originally prompted it no longer exist. At first it may appear that the Court’s decision is out of some perverse desire to create consistency; the other two Branches lack any restraints on their acts stemming from the mootness of their objectives, and now this Court joins that category. But that is not ultimately the case, given that we are breaking with our consistent practice. We have never required such a showing in any case holding a challenge moot because of the withdrawal of the underlying legislation or action. Indeed, many Members of the majority today have voted to find those previous challenges moot. The Court provides no explanation for why this has suddenly changed.

We are not the legal representatives to the Executive or to Congress. Or better said that we did not used to be, and were not intended to be. Today the Court has decided to take on this role by arrogating itself the authority to assume that because an action could in some possible scenario repeat itself, this per se creates an active case or controversy for Constitutional purposes. This new approach to the law the Court adopts today distorts those words beyond any recognition, and has fundamentally changed our role within the Constitutional framework.

I therefore dissent from the Court’s decision today.

*Justice Elevic took no part in the decision.