The Trump administration turned to the Supreme Court late Thursday in its effort to implement its revised travel ban, asking the justices to quickly reverse an appeals court ruling that is “wrong” to conclude the national security policy move was likely unconstitutional in how it treats Muslims.
The Justice Department requested that the justices consider the Trump administration's application faster than is typical — before the Supreme Court takes a three-month summer recess starting at the end of June. Five of the nine justices would have to vote to grant the request and lift the stay immediately, which would be without oral arguments and out of the view of the public.
The government also filed an appeal of the decision by the U.S. Court of Appeals for the 4th Circuit, a slower path through the Supreme Court. The DOJ said that path would leave the case ready for oral arguments by the beginning of the next term in October. Only four justices need to agree to hear the appeal, which seems more likely given the high-profile nature of President Donald Trump's executive order.
“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," Justice Department spokeswoman Sarah Isgur Flores said in a statement.
"The President is not required to admit people from countries that sponsor or shelter terrorism, until he determines that they can be properly vetted and do not pose a security risk to the United States," she continued.
A May 25 ruling by the 4th Circuit relied on statements Trump made on the campaign trail about a “Muslim ban” and other public comments. The 10-3 majority opinion stopped implementation of the revised order, which would halt the issuance of new visas for travelers from the majority-Muslim countries of Iran, Libya, Somalia, Sudan, Syria and Yemen for 90 days.
The administration argues in its application that preventing Trump from “effectuating his national-security judgment will continue to cause irreparable harm to the interests of the government and the public.”
“The injunction nullifies a formal national-security directive of the President — including provisions that affect only internal and diplomatic activities of government agencies — on the basis that the President purportedly acted with religious animus,” the government’s application states.
In the appeal itself, the Justice Department argues that the executive order's temporary pause applies to certain nationals of the designated countries without regard to religion, and the challengers conceded that it could be constitutional if issued by a different president.
“But it is likely unconstitutional here, the court held, because the President’s ‘stated national security interest’ ‘was provided in bad faith, as a pretext for its religious purpose,’” the government states in the petition. “That remarkable holding is wrong and in manifest need of this Court’s review.”
The Supreme Court could always decide to do what it wants, such as speeding up the typical briefing schedule or even holding a special sitting over the summer.
The 4th Circuit sided with advocacy groups who argued the order violates religious protections in the First Amendment that the government should not favor one religion over another. The opinion meant the administration can’t implement the ban until the conclusion of a legal challenge led by the nonprofit International Refugee Assistance Project.
“Congress granted the President broad power to deny entry to aliens, but that power is not absolute,” Chief Judge Roger Gregory wrote for the majority. “It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation.”
The Justice Department also asked the Supreme Court to pause a similar legal challenge to the ban making its way at another federal appeals court, the 9th Circuit based in San Francisco.