US News & World Report
By Joseph P. Williams
June 22, 2017
The Supreme Court on Thursday is expected to decide whether to hear arguments over the legality of President Donald Trump’s controversial travel ban, an executive order that’s the cornerstone of Trump’s national security plan – and that’s been held up and challenged in court, almost before the ink dried on his signature.
Although two sets of federal appellate judges have rejected the president’s second attempt to stop immigrants from several Muslim-majority countries from entering the U.S., lawyers from the Justice Department want the nation’s highest court to decide the issue, once and for all. Arguing that the national security stakes are “indisputably high,” the government wants the justices to do it in a hurry, and put the case on its fall docket.
While no one can predict with certainty what the justices will do, experts say the government’s relatively weak case – coupled with appellate judges’ solid reasoning, the ban’s problematic timetable, the highly charged political atmosphere surrounding the issue and the behavior of Trump himself – suggests it’s unlikely the White House will get its way.
“It seems to me it would be pretty peculiar for them to take it,” says Caroline Fredrickson, president of the American Constitution Society. The biggest problem, she says, is the executive order itself, which is centered around monthslong bans on issuing visas and suspension of refugee aid, deadlines that have run out – or will soon – before the court could hear arguments in its October term.
“There’s really no reason for them to grant it, I think, because in some ways it’s moot,” Fredrickson says.
Lawyers for the administration have countered that the order was never allowed to take effect, so the timeline has not begun.
At the same time, however, the case has a lot of moving parts that the justices will have to sort out before reaching a decision whether to hear it. That includes ruling on Justice Department requests to allow the ban to go on even as its legality is being argued, as well as determining whether to hear the case stemming from the U.S. Court of Appeals for the 4th Circuit, the one from the 9th Circuit, both appellate cases simultaneously – or neither case at all.
“They have to decide whether to treat those two cases differently because the scope of the injunctions are different,” says Leah Litman, a constitutional law professor at University of California-Irvine who has closely followed the legal journey of the travel ban.
At issue are the executive orders Trump signed during the first months of his administration, directives that would block citizens from Iran, Libya, Somalia, Sudan, Syria and Yemen from entering the U.S.
The initial order, one of Trump’s first major acts as chief executive, stopped refugees from those nations for 90 days and suspended the U.S.’s refugee program for 120 days. Though it triggered confusion and protests at airports nationwide, the order held for seven days until a federal judge in Seattle blocked it.
Instead of appealing that decision to a Supreme Court left shorthanded by the death of Justice Antonin Scalia – and Republicans’ decision to block then-President Barack Obama from filling the seat before leaving office – Trump revoked the order and instructed the Justice Department to revise it.
But federal judges in Hawaii and Maryland blocked that order hours before it went into effect. The Justice Department appealed both rulings, but both appeals failed. The Richmond, Virginia-based 4th Circuit upheld the Maryland stay, saying the ruling smacks of anti-Muslim bias, while the San Francisco-based 9th Circuit upheld the ruling from Hawaii.
Both courts condemned the executive order, pointing to statements by Trump, in public and on Twitter, that it was a “Muslim ban.” The justices concluded that the president’s own words undermined the argument that the ban was based on national security and not religion.
In asking the Supreme Court to get involved, the White House pushed back on that conclusion, declaring the lower courts “openly second-guessed” the president’s judgment, delayed action on an urgent national security issue and put American lives at risk. As a result, they argue, the case should be fast-tracked for the October docket, and the court should let the ban take effect immediately while the legal issues are sorted out.
But lawyers representing civil rights organizations who fought the ban say the president’s tweets should be considered official government communications. At the same time, they say that the Justice Department’s arguments are moot: The president signed the latest order in March, it’s now June, and the 90- and 120-day moratoriums have already expired; at the same time, even if the court allowed the moratoriums to happen, the clock would run out on both by the time arguments happen in the October conference.
Litman, of U.C. Irvine, says the Supreme Court has before it a flow chart of sorts. In considering whether to take up the matter, it can grant a hearing to one case, neither case or both cases, and that decision will determine what happens next.
If the justices agree to hear the government’s appeal of the 4th Circuit ruling or the 9th Circuit ruling, it then faces another decision: whether to also lift the nationwide order blocking the 90-day travel ban, the 120-day suspension of the refugee program, or both.
Yet that decision, Litman says, also depends on “whether the court decides to treat those two cases differently, because the scope of the injunction [banning the order] is different,” with one covering immigration and the other covering the refugee program.
While the court is to some degree unpredictable, Litman says, odds are the court will turn down the government’s request.
Scheduling a Supreme Court review of the case, and allowing the ban to happen, is “the option that makes the least sense,” Litman says. “The government hasn’t shown the [lower court] decisions are likely incorrect or that the government is treated differently as a litigant.”
Fredrickson, of the American Constitution Society, says the court also might be reluctant to wade into a sticky political thicket with no upside: Chief Justice John Roberts is highly conscious of the court’s public image, Trump has a history of attacking the judiciary and, since the lower-court rulings seem on solid ground, there isn’t a critical legal issue that’s crying out for resolution.
The rulings against Trump, in federal district and appellate courts, have been consistent, and it would be “strange” for the Supreme Court to hear a case that didn’t involve split decisions from two lower courts. Still, the opportunity to examine an interesting question – whether Trump’s Twitter statements constitute official government policy – could be tantalizing.
“It’s hard to predict, but it does seem like if they take the case it would indicate an itch they want to scratch,” she says.
“The conservative [justices] have enough votes [to take the case] if they want to make the point” that Trump’s tweets are official White House statements, Fredrickson says. “But I don’t know if this is an easy one for them because the president is so outspoken and the circuit decision is so well founded.”
At the end of the day, Fredrickson says, the mere fact that a twice-defeated executive order – one that courts have consistently found violates the Constitution’s ban on favoring one religion over another, and uses the president’s own words on Twitter as evidence – could receive Supreme Court consideration is a sign of the times.
“What can you say? It’s so unfortunate that he case is even moving its way up to the Supreme Court,” she says. “I’m taken aback by the fact we’re actually even considering this.”
The court could announce its decision next week.
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