Arguing that lower courts “openly second-guessed” President Donald Trump’s determination that national security concerns require a freeze on new visas for travelers from six Muslim-majority countries (Iran, Libya, Somalia, Sudan, Syria and Yemen), last night the federal government asked the Supreme Court to step into the legal dispute over the constitutionality of the executive order that the president signed on March 6. The government also asked the court to put on hold two lower-court rulings blocking the implementation of the executive order, telling the justices that those rulings undermine “the President’s constitutional and statutory power to protect” the United States.
Last night’s filings came in two separate challenges to the March 6 order, popularly known as the “travel ban.” One challenge originated in Maryland, where a federal district judge blocked the implementation of the order on March 16; last week the full U.S. Court of Appeals for the 4th Circuit largely upheld the Maryland judge’s order. Another challenge came from Hawaii: A district judge there also ruled for the challengers, and the U.S. Court of Appeals for the 9th Circuit heard oral argument in the government’s appeal on May 15, but the appeals court has not yet issued its decision. Yesterday the government urged the Supreme Court to review the 4th Circuit’s ruling on the merits and to freeze the district court’s order barring the implementation of the travel ban. The government also asked the justices to freeze the Hawaii court’s ruling blocking the travel ban until the 9th Circuit appeal is resolved – and, if necessary, while the government seeks review of that decision in the Supreme Court.
The government characterized the 4th Circuit’s ruling as “remarkable.” The president, it emphasized, has “broad authority to suspend or restrict the entry of aliens outside the United States when he deems it in the Nation’s interest.” Moreover, it added, the challengers conceded in the lower courts that the provision of the executive order putting a temporary hold on visas for travelers from the six countries listed in the order “could be constitutional if issued by some other President.” But, the government stressed, the 4th Circuit nonetheless ruled that the travel ban likely violated the Constitution because the president intended to discriminate against Muslims, even if the order does not actually say so. That conclusion simply has no basis in the law, the government argues: The Supreme Court “has never invalidated religion-neutral government action based on speculation about officials’ subjective motivations drawn from campaign-trail statements by a political candidate.”
Contending that the “stakes are indisputably high” and that the lower court’s ruling “creates uncertainty about the President’s authority to meet” national security threats, the government asked the justices to act quickly and announce before their summer recess at the end of June whether they will review the 4th Circuit’s ruling on the merits. That schedule, the government explains, would allow the two sides to file their briefs over the summer, so that the Supreme Court could hear oral argument in the case soon after the court’s new term begins in October.
The government’s request for review of the 4th Circuit’s ruling on the merits requires four votes, but the government needs five votes to prevail on its requests to freeze the orders blocking implementation of the travel ban, so the court’s disposition of those two requests could provide an early glimpse into the justices’ views on the challenges. The court is likely to ask the challengers to weigh in on the government’s efforts to obtain temporary relief; an order asking for their views could come at any time, perhaps even as soon as today.