WASHINGTON –– The Trump administration Thursday night asked the Supreme Court to allow the President’s travel ban that blocks entry from six Muslim-majority countries to go into effect.
In its filings, the administration asked the nine justices to consider the legality of President Donald Trump’s executive order, a move that appeals a ruling by the 4th Circuit that upheld a nationwide halt to the ban.
The case marks the President’s first test of his travel ban in the nation’s highest court after multiple stinging rebukes of his national security justifications for the ban in the lower federal courts.
Last month, the 4th Circuit Court of Appeals largely affirmed a federal judge’s decision from March, which found the core provision of the revised executive order — temporarily blocking foreign nationals from six Muslim-majority countries from entering the US — likely violates the Constitution because its primary purpose was to disfavor Muslims.
The 4th Circuit held that the executive order is composed of “vague words of national security” but in context “drips with religious intolerance, animus and discrimination.”
Thursday night’s petition will be referred to the full court and the justices will likely ask for a response from the challengers.
With the arrival of Justice Neil Gorsuch, Trump’s first Supreme Court nominee, the court is back to full strength with five conservatives and four liberals. But it is not certain that the justices would break down along ideological lines. The travel ban touches not just on immigration, but it involves issues such as the authority of the executive and the issue of religious freedom.
“The Constitution and Acts of Congress confer on the President broad authority to suspend or restrict the entry of aliens outside the United States when he deems it in the Nation’s interest, ” wrote Acting Solicitor General Jeffrey Wall.
He said that while the executive order has been the subject of “passionate political debate,” the lower court opinion “failed to adhere to foundational legal rules.”
“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,” said Justice Department spokesperson Sarah Isgur Flores.
The ACLU, one of the challengers to the travel ban, tweeted “We’ve beat this hateful ban and are ready to do it again, @realDonaldTrump.”
The administration argues the travel ban should be allowed to go into effect now while the court looks at the ultimate legality of Trump’s executive order later this year, said CNN legal analyst and professor at the University of Texas Law School Steve Vladeck.
“It’s an interesting procedural move, but the fact that it’s taken this long may undermine, at least to some extent, the Trump administration’s core argument that the entry ban, which has never gone into full effect, is essential to protect our national security,” Vladeck said.
“Thus, while it seems likely that the court will eventually hear the government’s challenge, the real question now is what happens in the interim,” Vladeck added. “Are there five votes to grant a stay and allow the ban to go into effect, or will everything remain frozen until the court has the last word.”
It would take five justices to agree to the stay application. According to Supreme Court rules, the justices would consider whether there is a “reasonable probability” that four of the justices would eventually agree to hear the case and a “fair prospect” that a majority of the court will hold that the opinion below was erroneous. They would also consider whether” irreparable harm” will result from the denial of they stay.
In a flurry of legal filings, the Justice Department also asked the court to put a separate injunction on hold that was issued by a district court judge in Hawaii in late March.