UPDATED Tuesday night: Within hours after the challengers’ response was filed, the Trump Administration submitted a 16-page reply brief. That means that all of the filings have been made, so the Supreme Court can act at any time. The arguments made by the government in its reply are discussed at the bottom of this post.
Lawyers for the state of Hawaii and other challengers to President Trump’s executive order argued to the Supreme Court on Tuesday that the current phase of that dispute should play out first in a lower appeals court. The variety of Supreme Court actions that the Trump Administration has sought are either outside of normal procedures or are unnecessary, the new filing contended.
Administration lawyers moved late last week to get the Supreme Court itself to clarify what it meant on June 26 in narrowing the government’s power to impose a sweeping exclusion of foreign nationals from Muslim-majority nations and of refugees from around the world. Only the Justices can spell out what they meant, the Trump team asserted.
Directly contesting those arguments, the challengers’ lawyers said the Supreme Court has nothing in its rules that allows a request for clarification of a prior ruling, and noted that the Justices have repeatedly turned down such requests in the past. It is the job of lower courts to apply and interpret Supreme Court decisions first, if there is any ambiguity, the lawyers said.
The challengers also opposed the government’s plea for the Justices to bypass the U.S. Court of Appeals for the Ninth Circuit in the task of defining limits on enforcement of the Trump presidential order. The document noted that the government’s top lawyers in the Supreme Court – the office of the U.S. Solicitor General – is on record as opposing such attempts. It is that same office in the Trump Administration that is pursuing such a request.
The several requests the government is making to the Justices, the new document argued, boils down to “the belief that any interpretation that meaningfully diminishes the practical consequences of its [immigration] bans must be wrong.”
If the government wants to get more power to exclude foreign nationals and refugees, it should first try to persuade the Ninth Circuit Court – where it already has a backup appeal pending, and where it also has pending a request to postpone any narrowing of its power to exclude travelers from the Mideast and refugees.
The Hawaiian legal team also mounted a full defense of the ruling last week by a federal trial judge in Honolulu, requiring the Administration to allow into the U.S. foreign grandparents and other relatives of individuals living in the U.S., and not just parents and children. The judge also required the Administration to let in any refugees that already have a formal assurance by a refugee assistance group that they will be resettled after they arrive.
The Trump Administration is arguing in its new plea to the Justices that both of those requirements go beyond what the Supreme Court has in mind in its ruling on June 26.
Now that the challengers have filed their opposition to what the government is seeking from the Justices, the government will have the opportunity to file a reply brief, and then the Justices presumably will be ready to act.
The first issue the Justices are likely to confront is whether they should put a temporary hold on what the Honolulu judge had ordered, while they ponder what to do with the other requests by the Administration.
The following new material was added to this post Tuesday night:
The Trump Administration lawyers, in replying to the opposition brief of the challengers, argued that the disagreements between the two sides are so deep that it adds to the urgency of having the Supreme Court clarify its June 26 decision without any further delay, and definitely without sending the dispute to the Ninth Circuit Court. The dispute inevitably would return to the Justices at some point, the federal reply brief said, so it would only add to confusion and delay to postpone review by the Justices.
Continuing to insist that only the Supreme Court can resolve the disagreements over what the Administration can now do under the Trump executive order, the government lawyers said there is nothing that the Ninth Circuit Court could do to help resolve the controversy at this stage.
In any event, the reply brief argued that the Justices should put the whole issue on hold until after either the Justices or the Ninth Circuit Court have made a decision about current enforcement options. Although government officials are now obeying the trial judge’s order limiting those options, and thus permitting more foreign nationals and refugees to enter the U.S., the reply brief argued that it would be easier to make a quick return to the policy it was following after the Supreme Court had ruled than it would be after time had passed for the Ninth Circuit Court and then the Supreme Court to act.