03 June, 2017
Justice Department lawyers asked the court to overturn a decision of the full U.S. Court of Appeals for the 4th Circuit that kept in place a freeze on President Donald Trump's revised ban.
The administration's Supreme Court filings reflect numerous same arguments that its lawyers have made in the lower courts, including their view that statements President Donald Trump made as a candidate - before he took the presidential oath - should not be considered.
The Administration has filed emergency applications with the 9 high court justices seeking to block 2 different lower court rulings that went against the 6th of March order barring entry for people from Iran, Libya, Somalia, Sudan, Syria and Yemen for 90 days while the United States government implements stricter Visa screening some of which has already been put in place.
The Hawaii judge's order goes considerably further than the one issued in Maryland.
The government filed papers late Thursday asking the justices to take up its appeal and, in the meantime, to let it enforce the travel ban while the court decides whether to hear a full argument later on the legal aspects of the case.
Second, the Trump administration asked the Supreme Court to stay the Fourth Circuit's decision while it considered whether to overrule it entirely - effectively, lifting the Fourth Circuit's hold on the country ban. It is unclear if the current case could be preserved if the order is allowed to expire without the Supreme Court ruling.
The administration also filed a petition requesting the justices to review the overall legality of the travel ban.
Arguing that the temporary ban is urgently needed to protect Americans from terrorist attacks, the government has asked the court to stay quickly the lower court actions.
The high court has a 5-4 conservative majority, with the administration needing five votes to put the ban into effect. They point to the fact that the government did not previously ask the Supreme Court to intervene, even when lower courts denied earlier emergency applications seeking to lift the injunctions. The justices are scheduled to end their work at the end of the month.
But the government's lawyers contend that the language of the ban was religion-neutral, and the previous judgments have attempted to second-guess Trump's motives. Acting solicitor general Jeffrey Wall has said that the ruling in the Hawaii case has prevented the government from moving forward on those objectives. One order called for "extreme vetting" of visa seekers from terror-plagued countries.
Several judges and a panel of the U.S. Court of Appeals for the 9th Circuit shut it down.
One thorny issue the Supreme Court may have to resolve if it grants the stay is whether the 90-day ban Trump sought to impose would begin from the day of the court's action or whether the clock has been ticking throughout the litigation, meaning it would expire in mid-June.
It's not a slam dunk: Justice Kennedy, for instance, has ruled in the past that there are some circumstances under which courts can review immigration policies, and Justice Gorsuch's pre-Supreme Court track record indicates he's also skeptical that the federal government has unlimited authority over individual rights in immigration cases.
However, in response to senators' questions about Trump's criticism of judges who had blocked his first immigration-related executive orders, Gorsuch said it was "disheartening" and "demoralizing". "They do not. As the Fourth Circuit noted, national security is but mere pretext for an order that 'in context drips with religious intolerance, animus, and discrimination.' We are confident that the Supreme Court will see through this sham and again affirm the values of justice and equality enshrined in our Constitution", added Vieux.
The travel ban was blocked by lower courts that found it was discriminatory. While that request faces an uphill battle, the high court ultimately could reverse the 4th Circuit and 9th Circuit courts after hearing the case.
