The Supreme Court granted certiorari in the government’s appeal from the 9th Circuit/Hawaii District Court order regarding Travel Order No. 3.
The Supreme Court Order accepting the case for review stated:
The petition for a writ of certiorari is granted. In addition to the questions presented by the petition, the parties are directed to brief and argue Question 3 presented by the brief in opposition.
Here are the three questions presented in the petition:
1. Whether respondents’ challenge to the President’s suspension of entry of aliens abroad is justiciable.
2. Whether the Proclamation is a lawful exercise of the President’s authority to suspend entry of aliens abroad.
3. Whether the global injunction is impermissibly overbroad.
Here is Question No. 3 in the Opposition:
3. Whether Proclamation No. 9645 violates the Establishment Clause.
What this means is that even though the 9th Circuit decision did not rest on a constitutional provision, the Supreme Court wants to here the Establishment Clause issue. That means that the 4th Circuit’s stalling tactic in delaying a ruling (which likely will be based on the Establishment Clause) is less important procedurally.
By way of background, in early December the Supreme Court granted a stay of lower court orders. I wrote that it was a complete slap down of the lower courts, and something that was well deserved. When Hawaii issued its injunction, I wrote:
I can’t say I’m surprised by the result, considering that the Judge involved here already has ruled against Trump. The problem in this decision, as it was in prior decisions by this and other lower courts, is that the Judge is substituting his evaluation of risk for that of the executive branch.
I also noted, when the 9th Circuit stayed much (but not all) of the Hawaii injunction:
These District Court judges are acting like the litigation in the Supreme Court never took place. While it’s true that SCOTUS never ruled on the merits, the fact that it issued stays of lower court injunctions and scheduled the case on the merits (later dismissed as moot) should have been a message to all but the most tone deaf lower Court judges how to handle subsequent litigation.
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