The Trump administration is seeking an early verdict on its travel ban for six majority-Muslim countries from a Supreme Court with a renewed conservative majority.<\/b>
\nTrump administration lawyers have asked the Supreme Court to decide a major constitutional question on the president\u2019s power to ban foreign travelers, but their late Thursday appeal came with a puzzling request.
In a 356-page appeal petition, the lawyers asked the justices to review this fall a lower court\u2019s ruling that President Trump\u2019s order banning some travelers from six majority-Muslim countries reflects unconstitutional discrimination on religious grounds. The president has \u201cbroad authority to suspend\u201d the entry of foreigners, they said.
At the same time, in a separate brief the lawyers urged the high court to issue an emergency ruling that immediately revives Trump\u2019s travel order, which, they said, \u201cplaces a temporary 90-day pause\u201d on new entrants from the six nations.
Legal experts have been quick to point out an obvious problem. If the justices agree later this month to hear the case in the fall, and they allow Trump\u2019s order to take effect, the 90-day \u201cpause\u201d would run out before October, when arguments could be scheduled. The case would be moot before it could be heard.
Marty Lederman, a Georgetown University law professor, noted a more immediate problem. Trump\u2019s order, which was revised from his original version that was blocked by lower courts, took effect on March 16, to run \u201cfor 90 days from the effective date of this order.\u201d Since no judge has blocked that part of order, Lederman said, it runs out in mid-June.
\u201cAs far as I can tell, nowhere in its briefs does the government disclose that all of this urgent briefing and pleas for expedition is rather beside the point, because by its own terms, the \u2018entry ban\u2019 expires less than two weeks from now, \u201d he wrote on the Take Care blog, a legal website focused on issues of executive power.
The administration\u2019s lawyers contended that the 90-day time limit was put on hold when the other parts of the executive order were blocked. But that issue has not been clearly resolved.
The timing issue complicates what would already be a difficult decision for the nine justices. Usually, the major clashes involving a president\u2019s assertion of power take several years to develop. It was in the fourth year of President George W. Bush\u2019s term, for example, when the justices challenged his go-it-alone approach to the U. S. military prison at Guantanamo Bay, Cuba. And it was in the fourth year of President Obama\u2019s term when the court took up the constitutional challenge to his healthcare law.
But Trump suffered a broad defeat for his first travel order in just his second week in office. Since then, the travel order, though revised, has been suspended nationwide by federal judges in Hawaii and Maryland. Last week, the 4th Circuit Court of Appeals upheld the Maryland judge\u2019s order that prevented Trump\u2019s ban from being enforced.
In the administration\u2019s appeal to the high court, acting Solicitor Gen. Jeffrey B. Wall argued that the constitutional conflict over the president\u2019s authority had taken on greater importance than the details of the travel policy.
\u201cThis order has been the subject of passionate political debate, \u201d he said. \u201cBut whatever one\u2019s views, the precedent set by this case for the judiciary\u2019s proper role in reviewing the President\u2019s national-security and immigration authority will transcend this debate, this order and this constitutional moment. Precisely in cases that spark such intense feelings, it is all the more critical to adhere to foundational legal rules.\u201d
It takes the votes of only four of the nine justices to grant review of a case, and the court typically agrees to hear major appeals from the Justice Department. The arrival of new Justice Neil M. Gorsuch is expected to bolster the administration\u2019s position.
However, it would take five votes to issue a ruling or to grant the request to put Trump\u2019s temporary order into effect. And Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy, who are likely to be the deciding votes, may not be inclined to put Trump\u2019s order into effect.
In this case, now called Trump vs. International Refugee Assistance Project, the justices need to weigh the matter and decide what to do by the end of this month.
On Friday, they asked for a formal response by June 12 from the American Civil Liberties Union, which represented the Muslim plaintiffs in the Maryland case.
\u201cThere is no reason to disturb the 4th Circuit\u2019s ruling, \u201d Omar Jadwat, the ACLU attorney, said in a statement issued Thursday night. It \u201cenforces a fundamental principle that protects all of us from government condemnation of our religious beliefs.\u201d
Josh Blackman, a law professor at the South Texas College of Law in Houston and a frequent legal blogger, predicts the court will agree to hear the case but refuse to lift the orders blocking the travel ban.
\u201cI don\u2019 t think there would be five votes to lift the stay\u201d and allow the travel order to take effect, he said. But the administration has a strong argument that there are \u201csignificant executive power issues\u201d at stake, Blackman said.
But, he added, much may turn on how the justices view the developments of the last few months. \u201cWe don\u2019 t know whether they see Trump as an existential threat or [believe] the lower courts are out of line, \u201d he said.
david.savage@latimes.com
On Twitter: DavidGSavage<\/p>\n

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