The request puts a Trump initiative before the Supreme Court for the first time and brings the nine justices into a national drama over claims that the president is targeting Muslims and abusing his authority. The case will give the first indications of how Chief Justice John Roberts’s court will approach one of the most controversial presidents in the nation’s history.
At issue is Trump’s executive order temporarily barring entry into the US by people from six predominantly Muslim countries in an effort to protect the country from terrorists. The administration asked the court to let the ban take effect while the justices decide whether to review a lower court ruling that said the policy was “steeped in animus and directed at a single religious group."
The president “placed a brief pause on entry from six countries that present heightened risks of terrorism," acting US Solicitor General Jeffrey Wall argued in the appeal. The lower court ruling “creates uncertainty about the president’s authority to meet those threats as the Constitution and acts of Congress empower and obligate him to do."
Trump is asking the justices to make their decision on whether to hear the appeal before leaving for their three-month recess at the end of June. Written briefs could be submitted before the court begins its next term in October, the government said. The administration also asked the court to reinstate the travel ban in the interim by the blocking two lower court orders that have put the policy on hold.
As a practical matter, the request for immediate action could determine the fate of the policy, given that the ban would be in effect only for 90 days. The court acts on such requests based on the legal papers without hearing arguments.
A Virginia-based federal appeals court voted 10-3 to uphold a nationwide halt to the policy, saying the travel ban was driven by unconstitutional religious motivations. The majority pointed to Trump’s campaign vow to bar Muslims from entering the country and to the special preference for religious minorities included in an earlier version of the ban. The appeals court’s 25 May opinion also faulted the White House for rushing out the first version without consulting with the national security agencies.
The executive order “speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination," Judge Roger Gregory wrote.
Three dissenting judges pointed to a 1972 Supreme Court decision that said courts shouldn’t second-guess immigration decisions that are based on a “facially legitimate and bona fide reason." Judge Dennis Shedd said the travel-ban ruling would make the country less safe.
“The real losers in this case are the millions of individual Americans whose security is threatened on a daily basis by those who seek to do us harm," Shedd wrote.
After Trump’s proposed Muslim ban drew criticism during the campaign, he shifted course and called for blocking immigration from countries with a “proven history" of terrorism. The travel policy would temporarily halt issuance of visas to people from Iran, Libya, Somalia, Sudan, Syria and Yemen.
“So-Called ‘Muslim Ban"’
Trump’s Supreme Court appeal said the policy “is not a so-called ‘Muslim ban,’ and campaign comments cannot change that basic fact."
Wall also asked the court to block a separate order from a federal judge in Hawaii. That judge halted both the six-nation travel ban and a separate provision that seeks to stop the acceptance of refugee applications for 120 days. An appeals court heard arguments in Seattle on 15 May but hasn’t ruled yet.
Wall asked the court to let the full executive order “go into effect without further delay."
Trump’s initial travel order — issued a week after he took office — threw airports around the world into chaos and prompted an outcry from the technology industry and US universities before it was blocked in court. The president signed the revised version on 6 March, and he later said it was needed to protect against “radical Islamic terrorists."
A central question in the legal fight is whether a 2015 opinion written by Justice Anthony Kennedy, the likely swing vote for the Supreme Court, gives judges broader leeway to intervene in immigration decisions.
Kennedy said courts should defer to executive branch decisions on immigration “absent an affirmative showing of bad faith." His opinion came in the case of a US citizen seeking to challenge the denial of her Afghan husband’s visa application. In blocking Trump’s travel ban, the appeals court pointed to that language and said the administration acted in “bad faith."
Kennedy wrote only for himself and Justice Samuel Alito in the 2015 case, but the opinion represented the controlling reasoning for the splintered court.
Trump’s position was strengthened in April when the Senate confirmed his Supreme Court nominee, Neil Gorsuch, restoring the court’s conservative-leaning majority.
“There’s concern that the recent appointment and confirmation changes the dynamic," Zahra Billoo, executive director of the Council on American-Islamic Relations in San Francisco, said in an interview. “At the same time, we are hopeful the Supreme Court won’t rubber stamp the administration’s actions." Bloomberg