It’s decision time for the Supreme Court when it comes to President Trump’s travel ban.
The justices in the coming days must decide whether to lift the temporary injunction on the ban and whether to hear the government’s appeal of lower court rulings that stopped the policy from taking effect.
The order, which Trump signed in March, would ban most nationals from six predominantly Muslim countries from entering the United States for 90 days. The administration said the countries — Iran, Libya, Somalia, Sudan, Syria and Yemen — are at heightened risk for terrorism.
Critics have fought the policy tooth and nail in court, calling it unconstitutional.
If the court decides to take up the case, some expect that the justices will schedule a special sitting to hear oral arguments before they break for the summer at the end of the month or in early July.
“I don’t think they will put it off until next term. It’s too big of a case and too important,” said Hans von Spakovsky, a senior legal fellow at the conservative Heritage Foundation.
“If they do, they will have chickened out, from a political standpoint.”
Carl Tobias, a professor at the University of Richmond School of Law, said a special sitting this summer is unlikely but not inconceivable.
He said the court could nonetheless grant the government’s request to stay the lower court rulings, which would allow the ban to go forward, and then hear the case next term.
Granting a stay would require five justices, so a decision along those lines could signal that there are enough votes on the court for Trump’s policy to prevail.
“There’s a high standard you have to meet for the stay,” Tobias said. “One prong is the probability of success on the merits. If it’s probable they will be successful that might lead to the conclusion there are five votes on the merits.”
While it weighs its next move, the Supreme Court on Tuesday set a new briefing schedule, ordering all parties in the case to have their legal briefs filed by June 21.
The new schedule will allow the justices to decide at their last scheduled conference, on June 22, whether to take the case.
Trump, meanwhile, on Wednesday made changes to the travel ban in an effort to prevent the Supreme Court from declaring the policy moot. He directed federal agencies to begin the 90-day ban on travelers from the six nations, and a 120-day ban on refugees, 72 hours after lower court orders blocking it are lifted.
Under the revised ban, the policies were set to take effect on March 16, meaning they would expire this week. Supporters of the ban say that because the courts placed it on hold, the clock never started.
Lower courts in Maryland and Hawaii were the first to block Trump’s policy. The 4th and 9th Circuit courts affirmed those orders, but found different reasons for doing so.
The 4th Circuit said the order discriminates against Muslims in violation of the establishment clause of the First Amendment, which prohibits the government from, when it comes to a specific religion, “prohibiting the free exercise thereof.”
The 9th Circuit, meanwhile, said the order did not provide the sufficient justification required under the Immigration and Nationality Act to suspend the entry of more than 180 million people on the basis of nationality.
If the Supreme Court takes the case, it wouldn’t be the first time it has scheduled arguments at the tail end of a term, which is typically reserved for issuing decisions and granting cases for the fall.
Von Spakovsky noted that the Supreme Court agreed to review the landmark First Amendment case that allowed The New York Times and The Washington Post to publish the classified Pentagon Papers in 1971, two days after the 2nd Circuit issued its decision on June 23. Arguments were then held on June 26 and the decision was issued one week later.
Von Spakovsky said Trump’s case is of immediate concern because the U.S. needs to ensure there are proper vetting procedures in place for immigrants.
“All they have to do is open their newspaper and look at the kind of terror attacks occurring all over Europe and realize this is an important national security issue,” he said.
“They can’t afford to wait four months to decide whether the president is exercising his proper authority to protect the U.S.”
But refugee advocates hope the Supreme Court will reject the case altogether, given the lack of a lower court split on the issue.
Nazanin Ash, vice president of global policy and advocacy for the International Rescue Committee, said the lower courts have made a strong case that the order was an overreach and misuse of presidential authority.
“We hope the Supreme Court would recognize the now vast body of evidence with respect to the travel ban and the multiple reasons courts across the country have identified this is an overreach of presidential authority that doesn’t reflect a national security concern but a potential bias against certain groups and populations,” she said.
Ash claims the Trump administration has the opportunity, as past administrations have done, to conduct security reviews while refugee admissions are ongoing.
The 9th Circuit vacated the part of the lower court order that blocked the government from reviewing its vetting procedures while the legal challenges played out.
In his order, Trump stated that the halt in travel and refugee resettlement was necessary “to temporarily reduce investigative burdens on relevant agencies” so that they could review and change vetting procedures for foreign nationals.