Moving energetically to defend President Trump’s new limits on immigration of Mideastern people and refugees, Administration lawyers asked the Supreme Court late Thursday night to allow prompt enforcement of all parts of the executive order.
It sought postponement of two federal trial judge’s temporary orders blocking enforcement nationwide of key sections of the presidential order, and it asked for expedited review of both cases – even though one of them has still not been decided in a federal appeals court.
Under the schedule suggested by the Trump legal team, the Justices would act quickly on the issue of prompt enforcement, then decide before recessing for the summer the question of whether it will review the legality of the Trump order and, then, if review is granted, take up the cases for hearing early in the next term, which starts in October.
Saying that the issues at stake were profoundly important, both on the power of the presidency and of the courts, and that urgent national security policy is on the line, the filings contended that President Trump had ample authority – granted by Congress – to decide who among foreigners can enter the United States.
The filings also strenuously protested the trial judges’ use of public statements made by President Trump – both as a candidate and after taking office – that indicated he was imposing immigration restrictions to accomplish a “Muslim ban.” Those statements, as well as similar comments by Trump aides, were used by lower courts in finding that the executive order is an unconstitutional form of discrimination based on religion, and was not actually a policy to protect national security.
Even if the court does not postpone all of the judges’ orders barring enforcement, the filings argued, those orders should not be nationwide, but should be strictly limited to just a few people who had sued to challenge the order.
The two requests for permission to start enforcing the executive order were aimed at decisions by a federal trial judge in Maryland and by a federal trial judge in Hawaii. Both orders involve nationwide though temporary bans on enforcing the 90-day suspension of entry into the country of foreign nationals from six Mideast nations with Muslim majority populations.
The Hawaii judge’s order goes considerably further than the one issued in Maryland. It also blocked enforcement of a 120-day suspension of entry into the country from refugees coming from anywhere in the world, and it stopped the government from doing planning on how to deal with new ways to “vet” travelers headed for the U.S. to see if they would pose a threat to security.
The Maryland judge’s order was upheld last month by the U.S. Court of Appeals for the Fourth Circuit. That appeals court’s ruling is the one that the government is challenging in the new appeal, separate from the two enforcement requests.
The Hawaii judge’s order is now being studied by the U.S. Circuit Court of Appeals for the Ninth Circuit, but that court has not yet issued a decision. In the government papers dealing with that case, the Justices were asked to treat the enforcement application as if it were also an appeal and to grant review of that case, too, without waiting for the Ninth Circuit Court to rule.
Here are links to the three filings: the petition to review the Fourth Circuit Court on the legality of the 90-day suspension on Mideast immigrants, the application to stay the Maryland judge’s order, and the application to stay the Hawaii judge’s order and to also grant review of that case on both the Mideast and the refugee restrictions.
It would take the votes of five of the nine Justices to allow the government to start enforcing the executive order, but the votes of only four to grant review of the legality of the immigration restrictions.
If the Justices do put the two judges’ orders on hold, the government could immediately put the restrictions into full effect. But if review is granted and that is held over until the next term, the 90-day suspension might run out before that provision could be reviewed. The whole controversy would not end that way, because the Hawaii judge’s order involves more than the suspensions.
Although the government lawyers requested that the Justices put review of the cases on a fast track, they did not try to persuade the Justices to extend the current term longer than its expected conclusion at the end of this month in order to get the cases finally decided. Thus, they said that review should go over to the next term.
(NOTE: This post also appeared today on Constitution Daily, the blog of the National Constitution Center in Philadelphia.)
(UPDATE: The stay application in the Maryland case (Fourth Circuit) has been docketed as 16A1190, and the cert petition in that case as 16-1436. The stay application in the Hawaii case (Ninth Circuit) is docketed as 16A1191.)