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June 2, 2017; Washington Post and New York Times

The Department of Justice has asked the Supreme Court to weigh in on two lower federal court decisions regarding the Trump administration’s March executive order that temporarily banned travel from six predominantly Muslim nations. This urgent appeal follows a ruling by the full U.S. Court of Appeals for the 4th Circuit that kept in place a freeze on President Trump’s revised ban.

The 10-to-3 ruling last week by the 4th Circuit was one in a series of legal defeats for the administration. Aligning with earlier rulings on the first travel ban (the revised executive order issued in March 2017), the judges of the 4th Circuit stopped implementation of Section 2(c) of the order, and a federal district court judge in Hawaii stopped all aspects of this order, including reviewing the current vetting process for issuing visas and admitting travelers coming from these six nations. (The Hawaii federal judge’s order has been appealed to a three-judge panel of the 9th U.S. Circuit Court of Appeals and is pending a decision.) Most courts across the country where cases have been heard on the issues have said Trump’s claim of protecting the nation while vetting procedures were reviewed was cover for making good on a campaign promise to ban Muslims from entry into the United States. This could move the Supreme Court into new territory for determining how it will rule.

There are three components to the Justice Department’s appeal. Each one needs careful consideration (and explanation). The first is the 356-page petition for the U.S. Supreme Court to consider an appeal of the ruling of the 4th Circuit. The request also asked for a speedy decision on this, with a determination to be made before the Court adjourns at the end of June. It would take the agreement of four Supreme Court justices for this, but even if that happened the case would still not be heard until the Court reconvenes in October.

At issue in this appeal is the 4th Circuit’s ruling that the executive order discriminates on the basis of religion, with the ruling’s basis in statements made during the Presidential campaign and in statements following the election. Also at stake are limits to broad Presidential authority to “keep the nation safe and protect our communities from terrorism.” In turning to the high court, Justice Department lawyers said the 4th Circuit should have considered only the language of the executive order and not second-guessed the president’s motivations. The Supreme Court “has never invalidated religion-neutral government action based on speculation about officials’ subjective motivations drawn from ­campaign-trail statements by a political candidate,” Acting Solicitor General Jeffrey B. Wall wrote in the government’s lawyers’ filing.

It is likely that the Supreme Court will grant the request for appeal. When a major presidential initiative is ruled unconstitutional by a federal appeals court, a review by the Supreme Court almost always follows. The Supreme Court has asked the challengers to the travel ban to respond to the government’s filing by June 12th, giving them time to decide before the summer adjournment if the appeal will be heard.

The second and third components of this appeal are interim requests asking the Court to stay two rulings blocking components of the temporary travel ban. Granting these stays would revive the ban while the justices determine how to respond to the petition of appeal. It takes five votes to grant a stay. As the New York Times explains,

The stay applications present harder questions, and how the court answers them will have important practical consequences. The court typically moves quickly on requests for stays, often acting in about a week. Under its usual practices, it would not hear arguments on the applications and would issue brief orders announcing the outcomes with little or no legal reasoning. If the court grants the requests, the travel ban will go back into effect and probably expire before the court hears arguments on the merits of the appeal. That could make the case moot.

The Hawaii ruling, in addition to declaring the orders unconstitutional based on religious discrimination, also blocked the presidential order that suspended the government’s refugee program. It seems to have also prohibited the government from even completing the 90-day review process on vetting refugees.

Whatever the ruling, this case has implications for the Supreme Court itself. At stake is whether the courts should consider only the content of a presidential order in making a ruling, or if statements and declarations made in campaigns and elsewhere should be considered. The reach and scope of certain presidential powers are also on the docket with this case.—Carole Levine