High court is asked to let Trump travel ban take effect
Supreme Court’s conservative majority may more readily embrace President Trump’s national security reasoning
Having so far failed to persuade judges to allow its travel ban to take effect, the Trump administration is turning to the nation’s highest court and its slim conservative majority.
The Justice Department on Thursday formally asked the Supreme Court to let a ban on visitors from six mostly Muslim countries and refugees from around the world to be put in place. The high court also is being asked to uphold the constitutionality of the Trump travel policy, which lower courts have blocked because it shows anti-Muslim prejudice.
The administration is banking on being able to persuade a majority of the nine-member court that they should defer to the president’s authority over immigration. President Donald Trump determined the ban is needed to “safeguard national security,” acting Solicitor General Jeffrey Wall wrote.
The administration’s filings reflect many of the arguments its lawyers made in lower courts, including that statements Trump made as a candidate — before he took the presidential oath — should not be considered.
“There’s this long line of immigration law, of precedents at the Supreme Court,” based on trusting presidents when they say they are acting to protect national security. Peter Spiro ,a professor at the Temple University Beasley School of Law
President Trump’s final hope to implement his temporary travel ban targeting six majority Muslim countries now rests with the Supreme Court. And luckily for him, the justices may prove to be the most receptive audience.
Federal judges in Hawaii, Washington, California, Maryland, Massachusetts and Virginia have ruled that two versions of his ban, issued Jan. 27 and March 6, violate First Amendment protections of religion. They concluded that Trump’s national security justification was outweighed by a clear intent to discriminate against Muslims.
Now. Department of Justice lawyers, armed with dissenting opinions from the lower courts, will plead their case before a more conservative court, with the prospect that a majority of justices may embrace their arguments.
In a court filing Thursday, the department argued that a candidate’s statements on the campaign trail — in this case, Trump’s call for a “Muslim” ban — should not be considered when reviewing a president’s actions. And they argued that presidents are to be trusted when they say they are acting to protect national security.
“There’s this long line of immigration law, of precedents at the Supreme Court, that are premised on that kind of reasoning,” said Peter Spiro, a professor at the Temple University Beasley School of Law. “If they want to uphold the ban, the opinion writes itself.”
At issue is Trump’s plan to temporarily ban most travel from Iran, Libya, Somalia, Sudan, Syria and Yemen for 90 days and suspend the entire refugee program for 120 days so the government can improve screening procedures to make sure terrorists don’t slip into the country.
One central question is whether a court is allowed to try and figure out the intent behind a presidential order.
During his campaign, Trump called for a “total and complete shutdown of Muslims entering the United States.” Opponents of the ban believe that statement, combined with others made by Trump and aides before and after he became president, is proof that the ban was nothing more than a “Muslim ban.”
But Acting Solicitor General Jeffrey Wall has argued that courts cannot “psychoanalyze” Trump’s motivations. If the text of an order is legal, Wall says, courts are not allowed to “look behind” that text to determine intent.
The Department of Justice has pointed to a Supreme Court opinion in Kleindienst v Mandel, a 1972 ruling that found courts cannot “look behind” an act performed by a government employee if there is a “facially legitimate and bona fide reason” for the act.
Five judges from the 9th U.S. Circuit Court of Appeals in San Francisco penned a dissent opinion asking how the majority could ignore that precedent.
“Even if we have questions about the basis for the President’s ultimate findings — whether it was a “Muslim ban” or something else — we do not get to peek behind the curtain,” Judge Jay Bybee, who was appointed to the 9th Circuit by President George W. Bush, wrote for the minority.
While candidate Trump called for a Muslim ban, Justice lawyers argue that he never advocated a ban as president.
Instead, they say Trump focused on the national security threats from specific territories, not on religion. That’s why he selected specific countries, they say.
Christopher Hajec, director of litigation at the Immigration Reform Law Institute, which has filed briefs supporting the travel ban, said he was shocked to hear liberal judges openly scrutinizing the national security justification outlined in Trump’s executive order.
“Courts are totally unequipped to do that,” Hajec said. “I don’t think the majority of the Supreme Court is going to make that same mistake.”
U.S. District Judge Anthony Trenga in Alexandria, Va., provided one of the only victories for Trump when he upheld the travel ban in March.
Trenga wrote that other courts were ignoring the fact that the administration made significant changes to the second travel ban to offer a “detailed justification for the Order based on national security needs.”