| WASHINGTON, June 2
WASHINGTON, June 2 The fight over President
Donald Trump's plan to ban temporarily people entering the
United States from six predominantly Muslim countries has now
boiled down to whether the conservative-leaning U.S. Supreme
Court will allow the controversial executive order to go into
effect immediately despite being blocked by lower courts
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. If the court
agrees, a 90-day ban on people entering the United States from
Iran, Libya, Somalia, Sudan, Syria and Yemen will be immediately
revived. The court could also put a 120-day ban on all refugees
into effect and allow the administration to consider new vetting
Even if the court allows the travel ban to take effect, the
bigger constitutional questions of religious discrimination and
presidential powers raised by the March 6 order would not be
considered by the nine justices until long after the ban periods
have ended. The court begins its summer recess at the end of
this month and would not give the case a full hearing until its
return in the fall, by which time the ban would have lapsed.
The administration filed emergency applications with the
high court on Thursday night seeking to block injunctions issued
by judges in Maryland and Hawaii. The Maryland order was upheld
on May 25 by the 4th U.S. Circuit Court of Appeals in Richmond,
Virginia. The government's appeal of the Hawaii injunction is
currently being considered by the San Francisco-based 9th U.S.
Circuit Court of Appeals. That court could issue its decision
before the Supreme Court acts on the emergency application.
The high court has a 5-4 conservative majority, with the
administration needing five votes to put the ban into effect.
Several factors are weighed when the court considers emergency
applications, which are rarely granted. One notable example of a
successful emergency application was when the court in February
2016 granted on a 5-4 vote a request by states and industry
groups to block President Barack Obama's climate regulations.
So far the travel ban has been litigated in courts dominated
by Democratic-appointees. While it has not fared well legally,
experts point out that the Supreme Court presents the best
chance the administration has to notch up a win.
"Even though it’s a heavy lift getting a stay, it seems to
me that the Supreme Court is the most favorable court they’ve
had access to so far," said John Elwood, a Washington lawyer.
The first step for the court will be to ask the various
challengers, including the American Civil Liberties Union and
Hawaii, to file responses to the Trump administration's
application. The administration is then likely to file its own
response to the challengers' legal arguments before the justices
issue an order granting or denying the application. That could
happen within days.
Under Supreme Court precedent, several criteria need to be
met for an emergency application to be granted, including that
there will be "irreparable harm" if it is denied and that there
is a "reasonable probability" that the court would agree to hear
the case on the merits.
In Thursday's court filings, Acting Solicitor General Jeff
Wall wrote that all the boxes have been checked. The nationwide
injunctions blocking the travel ban have caused irreparable harm
by "preventing the executive from effectuating his
national-security judgment," he wrote. As the case "enjoins a
formal national-security determination by the president of the
United States" there is also a strong likelihood the court would
want to take the case, he added.
CHALLENGERS DISPUTE URGENCY
The challengers contest the administration’s claim that
urgent action is needed for national security reasons. 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.
"This is different from the kind of case you would expect
the Supreme Court to grant the extraordinary relief of a stay,
because of the lack of any demonstrable urgency or harm and
because the law and the facts are on our side," said ACLU lawyer
One thorny issue the Supreme Court may have to resolve if it
grants the stay is whether the 90-day ban would begin from the
day of the court's action or whether the clock has been ticking
throughout the litigation, in which case it would expire in
mid-June. Challengers will argue for the latter, which would
mean it is almost set to expire. That would limit the practical
impact if the application were granted.
The court's conservative majority includes Justice Anthony
Kennedy. He sometimes sides with the court's four liberals and
could be the pivotal vote.
The travel ban's challengers have relied in part on a
concurring opinion Kennedy wrote in a 2015 Supreme Court
immigration case. Kennedy wrote that in the immigration context,
the government's actions can be questioned if there is evidence
of bad faith.
Another conservative justice is the man Trump recently
appointed to the high court, Neil Gorsuch. During his Senate
confirmation hearing, Gorsuch insisted he would not be a rubber
stamp for any president when asked about Trump's statements
criticizing judges who ruled against the travel ban.
Separate from the emergency application, the court also has
to decide whether to hear the government's full appeal of the
Virginia-based appeals court ruling.
The justices are not required to hear any case, but this one
meets important criteria cited by experts, including that it is
the federal government filing the appeal and that it involves a
(Reporting by Lawrence Hurley; Editing by Sue Horton and