Trump to justices: Revive travel ban
WASHINGTON (Reuters) – President Donald Trump faces an uphill fight convincing the Supreme Court it should grant his emergency request to reinstate his travel ban on people entering the United States from six predominantly Muslim countries.
His legal team on Thursday night asked the nine justices to allow his controversial March 6 executive order to take effect immediately despite being blocked by lower courts. The Supreme Court rarely grants emergency requests.
At issue is a ban Trump has said is necessary to protect Americans from terrorist attacks. Critics say his reasoning is flawed and assail the ban as discriminatory. Trump’s proposed ban was a centerpiece of his 2016 presidential campaign.
The fight over the emergency application is likely to determine whether the ban ever takes effect. That is because if the court grants the request, the ban’s 90-day term will have expired by the time the court decides the legal fate of the proposal.
The 5-4 conservative majority on the high court means Trump, a Republican who took office on January 20, likely has a better chance than he has had to date in more left-wing lower courts.
“Even though it’s a heavy lift getting a stay, it seems to me that the Supreme Court is the most favorable court they’ve had access to so far,” said John Elwood, a Washington lawyer.
The administration needs five votes on the nine-justice court to put the ban into effect. In this instance, the merits of whether it violates the US Constitution’s ban on religious discrimination by targeting Muslims matter less.
The court weighs several factors when considering emergency applications. One such application met with success when in February 2016 the court granted on a 5-4 vote a request by states and industry groups to block former president Barack Obama’s climate regulations.
Under Supreme Court precedent, several criteria need to be met for an emergency application to be granted, including that there would be “irreparable harm” if denied and that there is a “reasonable probability” the court would agree to hear the case on the merits.
In the government’s request, acting Solicitor-General Jeff Wall wrote that the nationwide injunctions blocking the travel ban have caused irreparable harm by “preventing the executive from effectuating his national-security judgment.”
The challengers contest the administration claim that urgent action is needed to protect Americans from terrorist attacks. They stress that the government did not previously ask the Supreme Court to intervene, even when lower courts denied earlier emergency applications seeking to lift the injunctions.
“This is different from the kind of case you would expect the Supreme Court to grant the extraordinary relief of a stay, because of the lack of any demonstrable urgency or harm and because the law and the facts are on our side,” said American Civil Liberties Union lawyer Omar Jadwat.
On Friday, the court asked the challengers, including the ACLU and Hawaii, to file responses to the Trump requests by June 12. The administration is then likely to file its own response to the challengers’ legal arguments before the justices issue an order granting or denying the administration’s applications.