The Supreme Court on Friday picked the last scheduled day this term for hearings – April 25 – to hear lawyers argue the validity of President Trump’s plan to deny future entry to the U.S. of tens of millions of foreign nationals from six Muslim-majority nations.
The April argument list issued Friday morning still left room for a hearing on the legal fate of the “DACA” program – Deferred Action for Childhood Arrivals – if the Justices do decide to hear the Administration appeal that seeks to shut down that program. The question of reviewing, or denying review of, that appeal was to be discussed by the Justices at their closed-door conference this morning. Action on it could be disclosed as early as this afternoon.
At issue in the April 25 hearing on the case of Trump v. Hawaii is the President’s third attempt to issue a flat ban on foreign travelers from Chad, Iran, Libya, Somalia, Syria and Yemen. Unlike two earlier, temporary versions, which faltered in lower federal courts, the latest plan was to be made permanent.
One federal appeals court has ruled that the Trump initiative went beyond the President’s powers under federal immigration law, and a second federal appeals court has ruled that the latest plan is an unconstitutional “Muslim ban,” discriminating on the basis of religion. Both the immigration law question and the constitutional question are under review in the case set for argument in late April.
Even though the validity of the third version is not yet settled by the Justices, that approach is now in operation; the Justices agreed to let it go into full effect while they reviewed the government’s appeal.
The argument list provides hearings on cases only in the mornings – except for one afternoon hearing on April 23. However, if the Justices were to grant review of the DACA case, a hearing could be scheduled for one of those five open afternoons, or the Justices could hold a special hearing on a day in May, although the Justices prefer not to hold hearings after April because the Justices are busy that month trying to finish writing opinions for the term.
If the Justices were to deny review of the DACA case, the planned end of the program on March 5 would not occur, because there are currently in effect two orders by lower federal-court judges keeping the program going while the shutdown order is under review in the courts.
The newly released April hearing list also contains three other significant constitutional controversies. On April 17, the Justices will hear the case of South Dakota v. Mayfair, a test of the constitutional power of states to tax sales of goods within the state that are made via the Internet to out-of-state suppliers. On April 23, a hearing is set for the case of Lucia v. Securities and Exchange Commission, on whether hearing officers at the SEC must be appointed by the President and confirmed by the Senate. And, on April 24, the Justices are to hold a combined hearing on two election redistricting cases from Texas; each has the same title, Abbott v. Perez. The first involves the validity of district lines for two congressional districts, the second involves the validity of districts for state legislative seats. Both involve issues of the racial composition of the maps at issue.
