The Trump administration
Justices asked to revive order, affirm president’s power
is seeking an early verdict on its travel ban for six majority-Muslim countries from a Supreme Court with a renewed conservative majority.
WASHINGTON — Trump administration lawyers have asked the U.S. 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 Donald 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 that immediately revives Trump’s travel order, which, they said, “places a temporary 90-day pause” on new entrants from the six nations — Iran, Libya, Somalia, Sudan, Syria and Yemen.
The original order included Iraq, which was removed from the revised list.
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 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, major clashes involving a president’s assertion of power take several years to develop.
But Trump suffered a broad defeat for his first travel order in just 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 U.S. Circuit Court of Appeals upheld the Maryland judge’s order.
In the administration’s appeal to the high court, acting Solicitor General Jeffrey 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 justices to grant review of a case, and the court typically agrees to hear major appeals from the Justice Department. The arrival of Justice Neil Gorsuch is expected to bolster the administration’s position. However, it would take five votes to issue a ruling or to grant the request to put Trump’s temporary order into effect. Chief Justice John Roberts and Justice Anthony Kennedy are likely to be the deciding votes.
In this case, now called Trump v. 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.