The Department of Justice filed a petition for a writ of certiorari just before midnight on Thursday, asking the Supreme Court of the United States to take up the hotly contested travel ban executive order blocked in the lower courts.
Should the Supreme Court accept the petition for Trump v. International Refugee Assistance Program, the nine justices, including the recently seated Trump appointee Neil Gorsuch, will consider overturning the U.S. Court of Appeals for the Fourth Circuit’s injunction blocking enforcement of President Donald Trump’s executive order banning most travel from six majority-Muslim countries. The case will be heard if four of the nine justices agree to take it up.
The 90-day temporary travel ban has now been through a revision and been the subject of several hearings at both the trial and appellate level. Most recently, an en banc panel of the Fourth Circuit ruled 10-3 to uphold the injunction. Thursday’s petition fulfills Attorney General Jeff Sessions’ promise immediately following that ruling to take the fight to the Supreme Court.
Over the strenuous objections of the dissent, the Fourth Circuit ruled, in a similar manner as their sister Ninth Circuit Court Appeals has in a parallel challenge to the travel ban, that even though the executive order is neutral with regard to Muslims in its text, statements President Trump and his surrogates made during the campaign turn it into violation of the First Amendment’s Establishment Clause. The majority opinion made no mention of the terror attacks in Manchester, England, committed by the Islamist son of immigrants from Libya, a country named in the order as a potential source of terror, on the day before the ruling was issued. Instead, Fourth Circuit quoted “former National Security Officials” saying the executive order served “no legitimate national security purpose” and that “there is no evidence of any new security risks emanating from these countries.” The vote split on party line of the appointing president of each judge on the panel.
Because the travel ban was only written to apply for 90 days, and is scheduled to expire on June 14, the Supreme Court would have to hear arguments and rule on the case on expedited emergency schedule in order to preserve the order as written. The Court normally does not hear arguments at this time of year. It is unclear if the current case could be preserved if the order is allowed to expire without the Supreme Court ruling.
The government’s petition, written in the name of Acting Solicitor General Jeffery B. Wall, asks the Court to reverse on grounds brought up by the Fourth Circuit dissenters, that precedent prohibits courts from looking for evidence of “bad faith” outside the text of the order itself. It also goes further, asking the court to dismiss the First Amendment challenge to the ban out of hand based on the broad power of the president to exclude aliens outside the United States, to whom the First Amendment does not apply, from entering the country.
The petition quotes a 1950 Supreme Court case saying, “‘The exclusion of aliens is a fundamental act of sovereignty’ that lies in the ‘legislative power’ and also ‘is inherent in the executive power to control the foreign affairs of the nation.’ “