Trump administration takes travel ban challenges to the Supreme Court
The White House announced late Thursday that it has asked the U.S. Supreme Court to allow the president's executive orders mandating a ban on travel from seven countries to take effect by overturning lower court rulings blocking it.
The request has been expected for months, as liberal appeals courts have stymied the travel ban at every turn.
The court's decision could be an indication of how much constitutional leeway the executive will be granted in trying to protect American citizens in the age of terrorism. Or it could be decided on narrower grounds, dealing exclusively with the wording and intent of the travel orders themselves.
The Justice Department urged the Supreme Court to allow it to enforce the executive order now, while the justices consider whether to hear the appeal.
It also asked the court to fast-track the case, which could result in the justices hearing it before its new term begins in the fall. The court normally disposes of all pending cases by the end of June.
"We have asked the Supreme Court to hear this important case and are confident that President Trump's executive order is well within his lawful authority to keep the nation safe and protect our communities from terrorism," Justice Department spokesperson Sarah Isgur Flores said.
"The President is not required to admit people from countries that sponsor or shelter terrorism, until he determines that they can be properly vetted and do not pose a security risk to the United States," she said.
Thursday's move was a certainty after a federal appeals court last week voted to uphold a ban on enforcement that was imposed by a federal judge in Maryland. Another appeals court, on the west coast, has yet to rule on whether to uphold a similar ban issued by a federal judge in Hawaii.
After President Trump's first executive order was blocked in court, the president signed the second one. It would impose a 90-day ban on entry to the U.S. from Iran, Sudan, Syria, Libya, Somalia, and Yemen. It would also suspend for 120 days the refugee program.
The 4th Circuit U.S. Court of Appeals in Virginia ruled May 25 that the president's executive order is likely unconstitutional, because it's based on religious discrimination.
Statements made during the campaign, the court said, make it clear the executive order stems from "President Trump's desire to exclude Muslims from the United States."
The "religious discrimination" argument is nonsense. Why would the plan "ban" Muslims from the U.S. if it allowed people to come to America during the time the ban was in force from three of the most populous Muslim-majority countries in the world (Indonesia, Malaysia, and Egypt)? The "Muslim ban" is a political talking point, not a reasoned legal position.
Rightly, the Justice Department accused the judges in Hawaii and Maryland of "judicial psychoanalysis" by taking campaign statements made by the president out of context.
But in their appeal Thursday, the Justice Department said determining what candidate Trump and his aides meant would require "judicial pscychoanalysis."
"The decision below is the first to hold that a provision of federal law – neutral on its face and in operation – violates the Establishment Clause based on speculation about its drafters' supposedly illicit purpose," the Justice Department said.
Government lawyers also said that, at most, a ban on enforcement should apply only to a one of the challengers in the Maryland case, a man who seems to bring his Iranian wife to the United States. The lower courts were wrong, the Justice Department said, to apply the enforcement ban nationwide.
The justices will likely seek the views of the challengers before deciding whether to grant any of the government's requests.
Trump has said the order is necessary to protect Americans from terrorists. Critics have called it a "Muslim ban," something Trump has denied. Some former high-ranking U.S. diplomats and security officials have argued it would harm, not help, U.S. national security.
Are we to leave our national security and protection of American citizens in the hands of the courts or the commander in chief? For all the legal pettifogging, this is the ultimate issue to be decided. The president has determined that travelers from countries that sponsor terrorism or that experience a large number of terrorist attacks could present a danger to the U.S. unless vetting procedures, weakened during the Obama administration, are made more robust. Opponents have no argument to counter that position except that enacting the temporary travel ban discriminates against Muslims.
But the ban would affect Christians traveling from the affected countries as much as Muslims. Clearly, the standard for religious discrimination has not been met by the plaintiffs.
The fate of the travel ban could depend on one or two liberal justices siding with the conservative majority by agreeing to allow the ban to go into effect on narrow, constitutional grounds. But if it's a 4-4 proposition, once again, Chief Justice Roberts could upend the conservative majority and deny the administration the right to defend the American people and homeland.