US high court will reinstate Trump’s request on travel ban

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 U.S. 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 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.

One thorny issue the Supreme Court may have to resolve if it grants the stay is whether the 90-day ban Trump sought to impose would begin from the day of the court›s action or whether the clock has been ticking throughout the litigation, meaning it would expire in mid-June. Challengers will argue for the latter, which would mean it is almost set to expire. That would limit the practical impact if the application were granted.

The court›s conservative majority includes Justice Anthony Kennedy. He sometimes sides with the court›s four liberals and could be the pivotal vote.

The travel ban›s challengers have relied in part on a concurring opinion Kennedy wrote in a 2015 Supreme Court immigration case. Kennedy wrote that in the immigration context, the government›s actions can be questioned if there is evidence of bad faith.

Another conservative justice is the man Trump appointed to the high court, Neil Gorsuch. During his U. S. Senate confirmation hearing, Gorsuch vowed not to be a rubber stamp for any president when asked about Trump›s statements criticizing judges who ruled against the travel ban.