President Donald Trump has asked the Supreme Court to revive his controversial travel ban executive order, hoping that the justices will give the green light to a policy repeatedly blocked by lower courts.
In filings Thursday night, the Justice Department asked the high court to temporarily lift injunctions that bar officials from carrying out Trump’s directive to suspend visa issuance to citizens of six majority-Muslim countries and halt the flow of refugees to the U.S. from across the globe.
The Trump administration also asked the justices to add the legality of the travel ban to the high court’s docket so the case would be ready for argument this fall.
“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 spokeswoman Sarah Isgur Flores said in a statement. "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."
Trump has billed the immigration restrictions as necessary to guard against the terrorist threat, but his policy has suffered a string of legal defeats in recent months from judges who said the executive order was a thinly-veiled and illegal attempt to carry out the “Muslim ban” Trump repeatedly promised in his presidential campaign.
The court rulings have also dealt serious political blows to the White House, setting back one of the president’s highest-profile policy moves and raising questions about the administration’s ability to manage complex policy shifts. The decisions have also underscored the degree to which Trump’s rhetoric — both before and after assuming the presidency —often undercuts his best legal defenses.
The Justice Department filings argue that the lower courts were wrong to take into account Trump’s statements from before he took office.
"This 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 Wall and other government attorneys wrote. They added that the visa suspension in Trump’s order "is not a so-called ‘Muslim ban,’ and campaign comments cannot change that basic fact."
The new moves at the Supreme Court came one week after a Virginia-based federal appeals court ruled, 10-3, against Trump’s bid to lift one of the pair of court orders blocking the visa ban. The 4th Circuit majority opinion savaged Trump’s directive, saying it “drips with religious intolerance, animus and discrimination.”
Another court order, which blocks both the visa ban and the refugee halt, is on appeal to the California-based 9thCircuit. A three-judge panel of that court heard the case last month, but has not yet ruled.
Trump issued his initial travel ban order just seven days after taking office in January. It was quickly neutralized by a series of court orders questioning its impact on existing visa holders and permanent U.S. residents, as well as those delayed or detained while entering the U.S.
After a 9th Circuit panel refused to disturb the broadest injunction against the first order, Trump reluctantly agreed with his aides not to take the issue to the Supreme Court (which was still operating shorthanded with eight justices at the time) and instead to redraft the order.
The revised directive emerged in early March, exempting existing visa holders and removing Iran from the original list of seven countries affected by the visa ban. Despite the changes, federal judges in Hawaii and Maryland blocked key parts of the policy before it was to take effect.
The Maryland case was brought by two refugee aid groups, the International Refugee Assistance Project and HIAS, as well as the Middle East Studies Association and several individuals. The Hawaii suit was filed by the State of Hawaii along with the imam of a local mosque.
Lawyers pressing the Maryland case did not appear to resist the idea that the Supreme Court wade into the dispute, but they did say the appeals court’s ruling should not be set aside.
“There is no reason to disturb the Fourth Circuit’s ruling, which was supported by an overwhelming majority of the judges on the full court, is consistent with rulings from other courts across the nation, and enforces a fundamental principle that protects all of us from government condemnation of our religious beliefs," said Omar Jadwat of the American Civil Liberties Union.
"Again and again, our nation’s courts have found that President Trump’s Muslim ban is unconstitutional. We will continue to defend our plaintiffs’ right to live free from fear of discriminatory treatment by the federal government," added Karen Tumlin of the National Immigration Law Center.
The Justice Department filings argue that the injunctions in both cases are not only flawed in concept, but also go too far by blocking the administration from enforcing the executive order’s affected provisions against anyone anywhere in the world. The petition calls the Maryland order — the narrower of the two injunctions —"vastly overbroad."
If the high court won’t lift the injunctions in their entirety, the federal government is asking the justices to narrow the rulings to cover the specific parties involved in the suits. That’s an approach the Supreme Court has taken in the past, although it is unclear whether the justices will adopt it in this legal fight.
The Supreme Court will likely set a schedule in the coming days for parties to the pending cases to weigh in on the federal government’s motions to allow the revised travel ban to take effect. Trump will need the votes of five justices to stay the lower court orders currently frustrating the administration’s efforts. Only four justices are needed to add the case to the court’s docket.
Trump’s call for emergency relief from the high court could be undercut by the fact that he had several opportunities to ask the justices for relief over the past several months and waited until now to do so, despite his public vows to escalate the legal battle.
Even if the Supreme Court declines to allow Trump to restore the ban in the near term, the justices could agree to hear the merits of the case next fall and issue a formal decision on the legality of the executive order. The Justice Department asked the court to agree to review the case on an expedited basis, with briefs filed over the summer so the case could be argued near the beginning of the court’s new term in October.