UPDATED Thursday: The challengers told the Fourth Circuit Court that they see no need for a simultaneous ruling on both the postponement issue and the legality of the Trump order, but agreed to a rapid schedule of briefing.
TThe Trump Administration asked a federal appeals court on Wednesday afternoon to order a rapid review of the legality of the revised presidential order limiting immigration of people from six Mideast nations.
At the same time, government lawyers told the U.S. Court of Appeals for the Fourth Circuit that they would shortly ask that a Maryland judge’s order blocking enforcement of the policy be put on hold.
However, in a highly unusual move, the lawyers suggested that the appeals court take no immediate action on that delay request. Instead, they requested that the appeals court rule simultaneously on the delay and on the legality of President Trump’s plan to suspend for 90 days any immigration from the listed Mideast countries.
When the Administration’s first attempt at immigration restrictions was blocked by a federal judge in Washington State last month, government lawyers moved immediately in the U.S. Court of Appeals for the Ninth Circuit to put the judge’s order on hold. That request failed, leading the Administration to draft a revised executive order.
Last week, U.S. District Judge Theodore D. Chuang of Greenbelt, MD, ordered the government not to put into effect the 90-day suspension, finding that the restriction was likely to be struck down as unconstitutional discrimination against Muslims. In reaction, government lawyers said they would challenge Judge Chuang in an appeal to the U.S. Court of Appeals for the Fourth Circuit. But they took no action at that time to seek a postponement of the Chuang ruling, thus accepting that the Trump order could not be enforced in the meantime.
The new motion filed Wednesday said that a delay request would be filed by Friday, if the appeals court set up an expedited schedule for ruling on the government’s appeal. Under the proposed schedule, written arguments from both sides would be filed on both the validity of the Trump immigration order and on postponement of Judge Chuang’s decision to block its enforcement. That way, the government filing said, the appeals court could rule on both issues together.
Under the timeline proposed by the government, all of the briefs would be filed by April 5. The motion noted that the challengers to the Trump order wanted more time for filing the briefs.
If the appeals court accepts the schedule proposed on Wednesday, that could mean that the controversy could reach the Supreme Court after a new ninth Justice has joined the bench. President Trump’s nomination of Judge Neil M. Gorsuch is expected to be put to a final vote in the Senate in the first week of April.
Last year, the eight-member Supreme Court split 4-to-4 when it reviewed a major immigration policy of President Obama . Conceivably, the Justices could divide that way again on the Trump immigration dispute, if a ninth Justice has not been approved by the time the case reached the highest tribunal.
The government motion filed in the Fourth Circuit Court made no mention of the prospect that the controversy would wind up in the Supreme Court, and no mention of the timeline that might put Judge Gorsuch in a position to break a tie among the Justices.
President Trump himself promised last week that his government would take the controversy over his immigration policy to the Supreme Court to try to salvage the executive order.
In the Maryland case, Judge Chuang did not block another key part of the Trump revised order – a 120-day suspension of the entry into the U.S. of any refugees from any nation around the globe. However, the opponents of the Trump initiative have asked the judge to reconsider, and stop enforcement of that restriction, too.
On Wednesday, Judge Chuang called for legal briefs to advise him on whether he has the authority to extend his ban on enforcement to the refugee restriction.