IF the U.S. Supreme Court wants to weigh in quickly on the legality of Donald Trump’s Second Executive Order temporarily barring new visa entries on people from six high-risk countries, SCOTUS has an opportunity to do so.

Yesterday the Justice Department filed requests for review of the case (Petition for Certiorari) and for a stay of 4th Circuit Court of Appeals affirmance of a Maryland District Court injunction pending determination of whether SCOTUS will hear the case.

Most people are focusing on the 4th Circuit injunction decision, but the Hawaii District Court injunction, currently on appeal to the 9th Circuit, also is in play. The government seeks review and a stay of that injunction in the event the 9th Circuit upholds the Hawaii injunction.

If the Court were to grant stays, the travel Executive Order would be reinstated. It is easier to obtain review than to obtain a stay, as Adam Liptak at the NY Times explains:

It takes four votes to grant a petition seeking review, which lawyers call a petition for certiorari.

The administration also made two interim requests, asking the court to stay two rulings blocking parts of the travel ban. Granting the stays would revive the ban while the justices decide how to respond to the petition. It takes five votes to grant a stay….

The court will probably agree to hear the appeal. When a major presidential initiative is ruled unconstitutional by a federal appeals court, a review by the Supreme Court almost always follows.

The stay applications present harder questions, and how the court answers them will have important practical consequences.

The court typically moves quickly on requests for stays, often acting in about a week. Under its usual practices, it would not hear arguments on the applications and would issue brief orders announcing the outcome with little or no legal reasoning.

If the court grants the requests, the travel ban will go back into effect and probably expire before the court hears arguments on the merits of the appeal. That could make the case moot.

You can guess the government’s argument, it’s one we’ve been making in all reviewing all the negative decisions. I wrote with regard to the 4th Circuit decision:

The opinion is so bad, it’s hard to know where to start. Perhaps the best place is this completely foolish statement on page 17:

The Second Executive Order does not include any examples of individuals from Iran, Libya, Sudan, Syria, or Yemen committing terrorism-related offenses in the United States.

Sorry, respected and honored Judges, that’s not your call. That’s the President’s call, and the President doesn’t need to recite examples in an order or wait for people from these countries to engage in terrorism in the U.S.  (We know that people from these countries have in fact committed terrorist acts in the U.S., but that’s actually beside the point for the legal analysis. It is not up to the judges.)

Amy Howe at Scotusblog writes of the government’s key argument:

The government characterized the 4th Circuit’s ruling as “remarkable.” The president, it emphasized, has “broad authority to suspend or restrict the entry of aliens outside the United States when he deems it in the Nation’s interest.” Moreover, it added, the challengers conceded in the lower courts that the provision of the executive order putting a temporary hold on visas for travelers from the six countries listed in the order “could be constitutional if issued by some other President.” But, the government stressed, the 4th Circuit nonetheless ruled that the travel ban likely violated the Constitution because the president intended to discriminate against Muslims, even if the order does not actually say so. That conclusion simply has no basis in the law, the government argues: The Supreme 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 papers filed are available at the links below:

Trump v IRAP (CA4 Cert Petition & Appendix) (PDF)
Trump v IRAP (CA4 Cert Petition & Appendix) (Text)
Trump v IRAP CA4 Stay Application Addendum (PDF)
Trump v IRAP CA4 Stay Application Addendum (Text)
Trump v Hawaii CA9 Stay Application Addendum (PDF)
Trump v Hawaii CA9 Stay Application Addendum (Text)

UPDATE: SCOTUS has just set June 12 as the deadline to respond to the government’s filings. So expect a decision whether to take the case and on the stay requests before the end of June.


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