Early verdict com­pli­cates travel ban

Ad­min­is­tra­tion asks high court to de­cide Trump’s or­der in fall, with an odd re­quest.

Los Angeles Times - - FRONT PAGE - By David G. Sav­age david.sav­age@la­times.com

The tim­ing of Pres­i­dent Trump’s re­quest be­fore the Supreme Court could make the is­sue of ex­clud­ing for­eign trav­el­ers moot be­fore it can be heard.

WASHINGTON — Trump ad­min­is­tra­tion lawyers have asked the Supreme Court to de­cide a ma­jor con­sti­tu­tional ques­tion on the pres­i­dent’s power to ban for­eign trav­el­ers, but their late Thurs­day ap­peal came with a puz­zling re­quest.

In a 356-page ap­peal pe­ti­tion, the lawyers asked the jus­tices to review this fall a lower court’s rul­ing that Pres­i­dent Trump’s or­der ban­ning some trav­el­ers from six ma­jor­ity-Mus­lim coun­tries re­flects un­con­sti­tu­tional dis­crim­i­na­tion on reli­gious grounds. The pres­i­dent has “broad author­ity to sus­pend” the en­try of for­eign­ers, they said.

At the same time, in a sep­a­rate brief the lawyers urged the high court to is­sue an emer­gency rul­ing to im­me­di­ately re­vive Trump’s travel or­der, which, they said, “places a tem­po­rary 90day pause” on new en­trants from the six na­tions.

Le­gal ex­perts have been quick to point out an ob­vi­ous prob­lem. If the jus­tices agree later this month to hear the case in the fall, and they al­low Trump’s or­der to take ef­fect, the 90-day “pause” would run out be­fore Oc­to­ber, when ar­gu­ments could be sched­uled. The case would be moot be­fore it could be heard.

Marty Le­d­er­man, a Ge­orge­town Univer­sity law pro­fes­sor, noted a more im­me­di­ate prob­lem. Trump’s or­der, which was re­vised from his orig­i­nal ver­sion that was blocked by lower courts, took ef­fect on March 16, to run “for 90 days from the ef­fec­tive date of this or­der.” Since no judge has blocked that part of or­der, Le­d­er­man said, it runs out in mid-June.

“As far as I can tell, nowhere in its briefs does the gov­ern­ment dis­close that all of this ur­gent brief­ing and pleas for ex­pe­di­tion is rather be­side the point, be­cause by its own terms, the ‘en­try ban’ ex­pires less than two weeks from now,” he wrote on the Take Care blog, a le­gal web­site fo­cused on is­sues of ex­ec­u­tive power.

The ad­min­is­tra­tion’s lawyers con­tended that the 90-day time limit was put on hold when the other parts of the ex­ec­u­tive or­der were blocked. But that is­sue has not been clearly re­solved.

The tim­ing is­sue com­pli­cates what would al­ready be a dif­fi­cult de­ci­sion for the nine jus­tices. Usu­ally, the ma­jor clashes in­volv­ing a pres­i­dent’s as­ser­tion of power take sev­eral years to de­velop. It was in the fourth year of Pres­i­dent Ge­orge W. Bush’s term, for ex­am­ple, when the jus­tices chal­lenged his go-it-alone ap­proach to the U.S. mil­i­tary prison at Guan­tanamo Bay, Cuba. And it was in the fourth year of Pres­i­dent Obama’s term when the court took up the con­sti­tu­tional chal­lenge to his health­care law.

But Trump suf­fered a broad de­feat for his first travel or­der in his sec­ond week in of­fice. Since then, the travel or­der, though re­vised, has been sus­pended na­tion­wide by fed­eral judges in Hawaii and Mary­land. Last week, the 4th Cir­cuit Court of Ap­peals up­held the Mary­land judge’s or­der that pre­vented Trump’s ban from be­ing en­forced.

In the ad­min­is­tra­tion’s ap­peal to the high court, act­ing So­lic­i­tor Gen. Jef­frey B. Wall ar­gued that the con­sti­tu­tional con­flict over the pres­i­dent’s author­ity had taken on greater im­por­tance than the de­tails of the travel pol­icy.

“This or­der has been the sub­ject of pas­sion­ate po­lit­i­cal de­bate,” he said. “But whatever one’s views, the prece­dent set by this case for the ju­di­ciary’s proper role in re­view­ing the Pres­i­dent’s na­tional-se­cu­rity and im­mi­gra­tion author­ity will tran­scend this de­bate, this or­der and this con­sti­tu­tional mo­ment. Pre­cisely in cases that spark such in­tense feel­ings, it is all the more crit­i­cal to ad­here to foun­da­tional le­gal rules.”

It takes the votes of only four of the nine jus­tices to grant review of a case, and the court typ­i­cally agrees to hear ma­jor ap­peals from the Jus­tice Depart­ment. The ar­rival of new Jus­tice Neil M. Gor­such is ex­pected to bol­ster the ad­min­is­tra­tion’s po­si­tion.

But it would take five votes to is­sue a rul­ing or to grant the re­quest to put Trump’s tem­po­rary or­der into ef­fect. And Chief Jus­tice John G. Roberts Jr. and Jus­tice An­thony M. Kennedy, who are likely to be the de­cid­ing votes, may not be in­clined to put Trump’s or­der into ef­fect.

In this case, Trump vs. In­ter­na­tional Refugee As­sis­tance Project, the jus­tices need to weigh the mat­ter and de­cide what to do by the end of this month.

On Fri­day, they asked for a for­mal re­sponse by June 12 from the Amer­i­can Civil Lib­er­ties Union, which rep­re­sented the Mus­lim plain­tiffs in the Mary­land case.

“There is no rea­son to dis­turb the 4th Cir­cuit’s rul­ing,” Omar Jadwat, the ACLU at­tor­ney, said in a state­ment is­sued Thurs­day night. It “en­forces a fun­da­men­tal prin­ci­ple that pro­tects all of us from gov­ern­ment con­dem­na­tion of our reli­gious be­liefs.”

Josh Black­man, a law pro­fes­sor at the South Texas Col­lege of Law in Houston and a fre­quent le­gal blog­ger, pre­dicts the court will agree to hear the case but refuse to lift the or­ders block­ing the travel ban.

“I don’t think there would be five votes to lift the stay” and al­low the travel or­der to take ef­fect, he said. But the ad­min­is­tra­tion has a strong ar­gu­ment that there are “sig­nif­i­cant ex­ec­u­tive power is­sues” at stake, Black­man said.

But, he added, much may turn on how the jus­tices view the de­vel­op­ments of the last few months. “We don’t know whether they see Trump as an ex­is­ten­tial threat or [be­lieve] the lower courts are out of line,” he said.

Jon El­swick As­so­ci­ated Press

LAWYERS for the Trump ad­min­is­tra­tion asked the Supreme Court to review a lower court’s rul­ing that the travel ban is un­con­sti­tu­tional — and in the mean­time to im­me­di­ately re­vive the or­der, an ap­par­ent conf lict.

J. Scott Applewhite As­so­ci­ated Press

THE NEW­EST jus­tice, Neil M. Gor­such, is ex­pected to bol­ster the ad­min­is­tra­tion’s po­si­tion on the is­sue.

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