UPDATED 5:27 p,m, Hawaii’s lawyers urged the Supreme Court not to allow so many additional briefs, but did not resist having all further briefs submitted for the Justices’ consideration on June 22. The letter is here.
Trump Administration lawyers asked the Supreme Court on Tuesday to arrange a schedule to have the Justices consider the new appeals on the presidential restrictions on immigration next week – on June 22. The timetable would allow it to make its challenge to the new ruling issued on Monday in a case from Hawaii.
In a letter sent to the court Tuesday morning, government lawyers said that they want the chance to file new briefs, with Hawaii’s lawyers also filing, on two questions: will the court allow immediate enforcement of the executive order, and will it grant review of the legality of that order?
The new briefs would be focused on the Monday decision by the U.S. Court of Appeals for the Ninth Circuit, upholding a federal judge’s order blocking enforcement of the two main parts of President Trump’s March 6 limits on immigration by foreign nationals from Mideast nations and by refugees from around the world. The Ninth Circuit Court ruled that Hawaii is likely to succeed in its claim that Trump did not have power, under federal immigration laws, to issue the executive order’s main provisions.
The court already has before it a government appeal from a ruling last month by another lower court, the U.S. Court of Appeals for the Fourth Circuit, in a case from Maryland, that blocked enforcement of one of the main parts of the Trump initiative. Most of the legal papers on that appeal are already on file at the court. Government lawyers renewed on Tuesday their request that the Justices review together both of the appeals courts’ rulings in favor of the challengers.
The Fourth Circuit Court ruled against the Trump policy as unconstitutional, as a form of religious discrimination against Muslims. The Ninth Circuit Court ruled only that Trump had failed to fulfill requirements under immigration laws that govern when the president may stop entry of foreign nationals into the country.
The new timetable requested Tuesday would deal only with the government appeal of the new Ninth Circuit Court decision. It asked that the government file a new brief requesting permission to enforce both parts of the executive order, with that brief due on Thursday, to be followed by a response from Hawaii’s lawyers by next Monday, and a reply by the government a week from tomorrow. That way, the lawyers’ letter said, the Ninth Circuit Court case would be fully ready for the Justices to consider at their scheduled private conference on June 22.
These papers, the letter said, would be a combined plea for enforcement power of the executive order, and a petition for review of the legality of the executive order itself.
The letter noted that lawyers for Hawaii objected to the specifics of the proposed timetable, arguing that the government should not have the option of filing a reply brief as part of the sequence. The lawyers for Hawaii plan to file their own proposal later Tuesday.
