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DOJ Asks Supreme Court To Let Travel Ban Take Effect

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Kevin Daley Supreme Court correspondent
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The high-stakes legal struggle over President Donald Trump’s executive order on refugees and migrants has reached the Supreme Court.

The Department of Justice filed an emergency petition at the Supreme Court late Thursday, asking the justices to allow enforcement of the president’s executive order and overturn a lower court ruling barring the directive’s imposition.

In a 10-3 ruling last week, the full 4th U.S. Circuit Court of Appeals found that President Trump’s order is objectively lawful. The panel nonetheless concluded it was unconstitutional in this instance, because Trump’s stated national security interest in issuing the order was little more than a pretext for discriminating against Muslims.

“That remarkable holding is wrong and in manifest need of this Court’s review,” the Department wrote in its petition. The 4th Circuit’s ruling leaves the provision of the order barring migration from six countries with high instances of terrorism under injunction.

DOJ asked the justices to set aside the ruling and schedule the case for oral arguments. They also requested that the Court lift an injunction issued by a federal judge in Hawaii which bars enforcement of key provisions of the order.

The Justice Department issued a statement shortly after the petitions were filed.

“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,” said spokeswomen Sarah Isgur Flores. “The president is not required to admit people from countries that sponsor or shelter terrorism.”

Among other arguments the Justice Department marshals, acting Solicitor General Jeffrey Wall says the 4th Circuit’s ruling has hindered the president’s ability to execute foreign policy. He writes:

By attempting to delve into the President’s supposed true motives for Section 2(c), the court of appeals also injected itself into sensitive matters of foreign affairs and risked “what [this] Court has called in another context ’embarrassment of our government abroad’ through ‘multifarious pronouncements by various departments on one question.'”

The court’s pronouncement — that the President of the United States took official action based on animus toward one of the world’s dominant religions, notwithstanding his own official statements to the contrary — plainly carries the potential to undermine the Executive’s ability to conduct foreign relations for and protect the security of the Nation.

Four justices must agree to take the case in order to initiate Supreme Court review, though five votes are necessary to overturn lower court orders barring enforcement of Trump’s directive. Therefore, the Court may take the case while allowing injunctions enjoining the order to stand. The justices will likely issue a decision regarding the stay requests in short order, though a decision as to whether to review the case will take longer.

The timing could quickly become a hindrance for the Department. The Supreme Court sits from early October to the end of June, and is no longer scheduling cases for arguments during this term. Therefore, should the justices agree to take the case, it may not be heard until late this year. This long timeframe is especially detrimental to the government’s case, as it could undermine the administration’s argument that the order was motivated by urgent threats to national security.

Still, the government argues the courts must defer to the president’s national security findings, and blasted the 4th Circuit for imputing discriminatory intent on the basis of the president’s campaign statements. In its ruling last week, the court found that the president’s campaign season rhetoric evinces an intent to discriminate against Muslims.

“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,” the Department wrote.

In closing, the Department repeated an admonition Wall offered at the conclusion of his arguments before the 4th Circuit. Wall gently reminded the court that the intense controversies the case occasions should not obscure the fundamental issue at hand — the scope of the president’s immigration and national security powers. The Department writes:

“[T]he precedent set by this case for the judiciary’s proper role in reviewing the President’s national-security and immigration authority will transcend this debate, this Order, and this constitutional moment. Precisely in cases that spark such intense feelings, it is all the more critical to adhere to foundational legal rules. The decision below departs from those rules, and calls into question the Executive and his authority in a way that warrants this Court’s review.”

A ruling from the 9th U.S. Circuit Court of Appeals on the president’s second order is still pending as of this writing. It is not clear what the 9th Circuit will do should the justices issue a decision on DOJ’s petition before they issue their own ruling.

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