Federal courts are still debating whether the Trump administration’s travel ban is constitutional. But the administration is anxious to put the ban into effect. So it’s asking the Supreme Court for permission to start enforcing it as soon as possible.
On Thursday night, the Department of Justice filed a request for the Supreme Court to overrule a Fourth Circuit ruling from last week that kept a hold on the administration’s proposal to temporarily ban people from six majority-Muslim countries from entering the US.
But the DOJ also asked the Supreme Court to go much further — and intervene in a separate lawsuit that’s still pending before the Ninth Circuit — in order to allow the federal government to put the ban in place before the end of June, when the Supreme Court embarks on its summer recess.
It’s more likely that the Supreme Court will side with the federal government on the travel ban than the “very liberal” Ninth Circuit (the preferred epithet of Trump and other administration officials). But the weirdness of the request — which is almost certainly an attempt to speed up the process before the Supreme Court adjourns for the summer — may not sit well with the procedure-minded justices.
Whether the Supreme Court grants all of the Trump administration’s requests depends on whether the Court’s conservative wing (now including Trump-appointed Justice Neil Gorsuch) accepts the administration’s argument that the executive branch’s authority on immigration and national security is absolute enough, and important enough, that the lower-court decisions against the administration are a horrific error that’s worth skipping a few procedural steps to fix.
Why the Trump administration’s request is so weird
Last week, the Fourth Circuit, in Maryland, upheld a lower court’s ruling that kept the Trump administration from enforcing the part of a March executive order that would have prevented anyone from six majority-Muslim countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen) from entering the US for 90 days. The Fourth Circuit ruling kept a temporary injunction in place while the Eastern District of Maryland decided for sure whether the ban was constitutional or not.
The Trump administration, on Thursday, appealed that injunction to the Supreme Court. So far, so good, so procedural.
But there were actually three (well, three and a half) parts to the Trump administration’s request.
First, the Trump administration appealed the Fourth Circuit’s ruling: It asked the Supreme Court to consider overturning the injunction against the ban on entries from certain countries. The Court needs four justices to agree to hear that case, which it’s pretty likely to get, but since the Court is about to recess for the summer, it probably wouldn’t hear oral arguments until next fall, and will issue a ruling sometime after that.
Second, the Trump administration asked the Supreme Court to stay the Fourth Circuit’s decision while it considered whether to overrule it entirely — effectively, lifting the Fourth Circuit’s hold on the country ban. That would require five votes. (The administration’s best bet for a majority: the four conservative justices, including Gorsuch, and a swing vote from Justice Anthony Kennedy.)
Here’s the problem for the administration, though. Even if the Supreme Court agreed to stay the Fourth Circuit’s decision, the travel ban still wouldn’t be allowed to go into effect.
That’s because a separate court — the District of Hawaii, in the Ninth Circuit — also issued a temporary injunction against the travel ban in March (the day before the revised version of the ban was to go into effect, following previous court defeats in February). The Trump administration appealed that ruling to the Ninth Circuit Court of Appeals, but the Ninth Circuit hasn’t issued its own ruling in the case yet.
The West Coast injunction is much broader. It prevents the government not only from temporarily barring entry of residents of the six countries but also from conducting a broader review of visa security procedures that could lead to more countries getting blacklisted — and it stops the government from temporarily suspending refugee admissions from around the world.
So thirdly, the Trump administration asked the Supreme Court to put the Hawaii ruling on hold until the Ninth Circuit issues its ruling — essentially skipping a step. (If the justices aren’t willing to do that, the administration asks them to preemptively agree to hear the case even before the Ninth Circuit has ruled.)
Why the rush? There are two big reasons.
First of all, the Trump administration pretty clearly doesn’t have a lot of confidence that the Ninth Circuit is going to side with the president in the Hawaii case — there’s a reason they keep calling it the “very liberal Ninth Circuit.” So there’s little upside to waiting for a ruling in hopes that it might be favorable and legally strengthen the administration’s hand before the Supreme Court.
The other reason is the calendar. The Supreme Court term ends at the end of the month — the Court has already stopped hearing oral arguments for the year, and any cases it grants now aren’t going to be heard until the fall. Even an “expedited” schedule for the travel ban case, which the Trump administration is asking for now, would have the Supreme Court hearing oral arguments in September and issuing a ruling sometime after that.
So if the White House has any hope of being able to enforce the travel ban before late 2017, it needs the Supreme Court to grant a stay of both the East and West Coast decisions. And since the Ninth Circuit hasn’t ruled yet — and the clock is ticking on the end of the SCOTUS term — that leaves the administration asking the Supreme Court to act before the Ninth Circuit does.
This is an aggressive request of a conservative court
It’s a pretty sure bet that the Trump administration is going to get the four votes it needs on the Supreme Court for a normal (i.e., slow) appeal to move forward. It’s possible that the Court will wait until the Ninth Circuit has ruled before agreeing to take up both travel ban cases — and it’s also possible, though really unlikely, that if the Ninth Circuit rules against the administration as well, the Supreme Court will just let those rulings stand, effectively killing the travel ban for good.
But for the stays — the administration’s only hope for putting the travel ban in place over the summer — the White House needs five Supreme Court votes. And it’s not clear that it has them.
The most likely scenario, according to Supreme Court watchers, is that the Court rejects the administration’s requests for immediate stays but agrees to take up both the East and West Coast cases in September. That would deter the Ninth Circuit from issuing a ruling in the meantime (because it wouldn’t want to stick its neck out if it was about to be overturned), and avoid the possibility that a legal technicality could render the case moot before the Supreme Court got a crack at it.
But as a matter of policy, that route would keep the ban on hold for — at a minimum — twice as long as it was supposed to be in place to begin with.
If and when the Supreme Court takes up the ban, Trump might ultimately have five Supreme Court justices who agree that it is, in fact, constitutional.
It’s not a slam dunk: Justice Kennedy, for instance, has ruled in the past that there are some circumstances under which courts can review immigration policies, and Justice Gorsuch’s pre–Supreme Court track record indicates he’s also skeptical that the federal government has unlimited authority over individual rights in immigration cases.
But it’s a lot more likely that there will be a Supreme Court majority in favor of the travel ban eventually than it is that there will be a Supreme Court majority in favor of what the administration is asking for right now.
While the Court’s conservatives tend to defer to the executive branch on national security issues, they’re also respectful of procedure. They’re likely wary of skipping steps in the appellate process, even to stop a ruling they don’t agree with.
The Trump administration is seeking immediate gratification from the Supreme Court. It’s probably going to have to wait.