The Trump Administration on Wednesday urged the Supreme Court to turn down a request that it move swiftly to review a second case testing the White House order limiting immigration from six Muslim-majority nations. In a brief filing submitted one day before it was due, Administration lawyers argued that adding a new case would complicate the Justices’ plan to decide the legality of the Trump executive order during the current term of the Court.
“We are now a month into” the schedule for review, so the request to expand review to include a new case “simply comes too late,” the brief said.
The Justices’ review of a case that originated in Hawaii is already unfolding, aiming toward a hearing that has been set for April 25. The new Administration filing opposed tacking on a case that began in Maryland. In both cases, lower courts had ruled that the Trump order issued in September – the third attempt to deny entry to foreign nationals numbering in the tens of millions – was likely to be found either illegal under immigration law (the result in the Hawaii case) or unconstitutional as a “Muslim ban” (the outcome in the Maryland case).
When the Justices announced on January 19 that they would hear and decide the Hawaii case, they said they would examine all issues under immigration law and the Constitution. But the lawyers who filed the appeal in the Maryland case last week said they would be in a better position to present arguments on the constitutional point, and they sought review of an issue not under review in the Hawaii case. That additional issue is this: if the White House order is struck down, how much authority would the Administration still have to keep out foreign nationals from the six nations? Those six nations are Chad, Iran, Libya, Somalia, Syria and Yemen.
The lawyers wanted the Court to put the Maryland case on the same schedule that the Hawaii case has been following.
In resisting prompt review of the Maryland case, the Administration’s brief filed on Wednesday argued that doing that would be a burden on the Court and on the government’s lawyers who would have to be writing multiple legal briefs on a shortened time schedule.
In addition, they contended that the added question – over the scope of any final order on the powers the Administration would have to bar entry – was “insubstantial” and added that lower courts in both the Hawaii and Maryland cases had refused to curb presidential power over immigration in the way that the challengers in the Maryland case sought.
The specific issue on this point is whether an order against enforcement of the Trump executive order should be limited to permitting the entry only of foreign nationals from the six countries who already have an established close tie to family or to institutions in the U.S. The challengers in the Maryland case want to present arguments to the Justices to restrict the government’s power so that foreign nationals who may establish ties to this country in the future would also be allowed to enter. The difference may be hundreds, if not more, of potential entrants.
The new Administration brief objected to that proposal, commenting: “If an alien abroad lacks such a relationship [to the U.S.], neither he nor any U.S. person could possibly have a justiciable claim to challenge the alien’s exclusion.”
The challengers in the Maryland case, the government brief suggested, could file a friend-of-court brief in the Hawaii case to lay their views before the Court. If the Court decides it wants to review the Maryland case, it should not do so until after it has released its decision in the Hawaii case, according to the new filing.
The two cases involving the legality of the Trump order were proceeding in lower courts on nearly the same timetable, but then the appeals court handling the Hawaii case issued its decision promptly on December 22, while the appeals court reviewing the Maryland case did not issue its ruling until February 15.
Meanwhile, the Administration is continuing to enforce the full scope of the Trump order, under a temporary ruling the Justices issued in both cases last month. In its filing Wednesday, it told the Justices that it will be filing its own appeal in the Maryland case, but asked that the case be held without action until the Hawaii case is decided.
The Justices may consider at a Friday private conference what to do with the Maryland case.