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Waiting for SCOTUS to rule on Trump request to stay injunction against travel Executive Order

Waiting for SCOTUS to rule on Trump request to stay injunction against travel Executive Order

4th Circuit decision so egregious, hopefully the Gorsuch-empowered SCOTUS will restore executive branch authority.

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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Egregious. That is being kind. It is an abdication of settled law for over 200 years. I would have been embarrassed to attach my name to such trope.

    JPL17 in reply to sidebar. | June 2, 2017 at 5:54 pm

    Sorry about the accidental down-tick, sidebar (which the software won’t let me undo). I meant to hit reply, and my intended response was going to be, “I think you misspelled ‘tripe'”.

    iconotastic in reply to sidebar. | June 2, 2017 at 7:31 pm

    Obviously you were not ‘qualified’ for an appointment to the court under the Obama administration ):

Is it too much to ask for a 9-0 Trump decision here? As far as I can tell, none of the judges so far have had any issues with the actual order, just the Trump campaign statements. If so, boom.

    fogflyer in reply to georgfelis. | June 3, 2017 at 11:10 pm

    Yes, it is too much to ask.
    There is no way Ginsburg votes in Trump’s favor.

    Quite frankly, if one is going to take campaign trail comments into consideration, then she should be recusing herself for bias based on all the anti-trump rhetoric she spewed during the presidential campaign. It only seems fair.

I keep coming I with egregious examples where this new examine their statements technique could really turn upside down Obama’s World.

Remember that “War on Coal” and those statements he made in 2008 about putting them out of business.

    Milhouse in reply to Neo. | June 2, 2017 at 7:17 pm

    How would that help? Putting the coal industry out of work is not an illegitimate motive. 0bama could openly admit and proclaim such a motive without it affecting the legitimacy of the measures he took to achieve it. Religious discrimination is, in most areas of government action, an illegitimate motive, which makes otherwise legitimate measures illegal. In determining whether such a motive was indeed present it seems fair to look at a president’s public statements.

    My objection to the courts’ rulings in this instance is that to the best of my knowledge binding supreme court precedent says Congress and the president have plenary authority here, and motive doesn’t matter. If the Chinese Exclusion Act was constitutional — and the Supreme Court said it was, so lower courts must pretend it’s so whether they agree or not — then so must be even an actual Moslem ban, and therefore a fortiori so must be this ban which is merely alleged to be a secret attempt to sneak a Moslem ban past the courts.

      “Putting the coal industry out of work is not an illegitimate motive….”

      Of course it could be! – It depends on the government’s motive in putting the coal industry out of business.

      Ask Lois Lerner.

        Milhouse in reply to | June 2, 2017 at 8:07 pm

        No, it doesn’t. There is not a word in the constitution forbidding hostility to coal mining, or to any industry, or requiring the government to be neutral about industries. The constitution does forbid almost any government action that is intended to put a burden on the practise of Islam. Almost any. At least under current SCOTUS precedent immigration is not included in that, and the lower courts are bound by that until SCOTUS says otherwise.

          How about if the government targets the coal industry because it is predominantly muslim? Or black? Or female?

          B__2 in reply to Milhouse. | June 2, 2017 at 9:17 pm

          What if the coal miners founded the “Church of the Fossil Fuel” which required its clergy (known as “Miners”) to extract coal from underground and offer it to supplicants to help them live their lives better and be more productive?

          Wouldn’t coal mining then be as protected as islam and for the same reasons?

I see it doing just fine, but my interest is now on the scheduling.
When could this be heard?

    Even if it is delayed, it might be ok – reports I’ve seen indicates that visa apps are down over prior years,so there is an effect already.

    Hopefully, the administration has been working on their review of vetting process. If the EO is ok’d, then they have even more time to figure things out.

Why can’t Trump reform the entry process to require vetting of every non-citizen entering the USA? Terrorist nations like Iran and North Korea can’t provide reliable information on their citizens so their excluded also. Trump should make these requirements permanent.