Trump travel ban's fate hinges on emergency U.S. high court request

[rooster59]

Trump travel ban's fate hinges on emergency U.S. high court request

By Lawrence Hurley

 

FILE PHOTO: A U.S. Customs and Border Protection arm patch and badge is seen at Los Angeles International Airport, California February 20, 2014. REUTERS/Kevork Djansezian/File Photo

 

WASHINGTON (Reuters) - President Donald Trump faces an uphill fight convincing the Supreme Court it should grant his emergency request to reinstate his travel ban on people entering the United States from six predominantly Muslim countries.

 

His legal team on Thursday night asked the nine justices to allow his controversial March 6 executive order to take effect immediately despite being blocked by lower courts. The Supreme Court rarely grants emergency requests.

 

At issue is a ban Trump has said is necessary to protect Americans from terrorist attacks. Critics say his reasoning is flawed and assail the ban as discriminatory. Trump's proposed ban was a centerpiece of his 2016 presidential campaign.

 

The fight over the emergency application is likely to determine whether the ban ever takes effect. That is because if the court grants the request, the ban's 90-day term will have expired by the time the court decides the legal fate of the proposal.

 

The 5-4 conservative majority on the high court means Trump, a Republican who took office on Jan. 20, likely has a better chance than he has had to date in more liberal-leaning lower courts.

 

"Even though it’s a heavy lift getting a stay, it seems to me that the Supreme Court is the most favorable court they’ve had access to so far," said John Elwood, a Washington lawyer.

 

The administration needs five votes on the nine-justice court to put the ban into effect. In this instance, the merits of whether it violates the U.S. Constitution's ban on religious discrimination by targeting Muslims matter less.

 

The court weighs several factors when considering emergency applications. One such application met with success when in February 2016 the court granted on a 5-4 vote a request by states and industry groups to block President Barack Obama's climate regulations.

 

Under Supreme Court precedent, several criteria need to be met for an emergency application to be granted, including that there would be "irreparable harm" if denied and that there is a "reasonable probability" the court would agree to hear the case on the merits.

 

In the government's request, Acting Solicitor General Jeff Wall wrote that the nationwide injunctions blocking the travel ban have caused irreparable harm by "preventing the executive from effectuating his national-security judgment."

 

CHALLENGERS DISPUTE URGENCY

 

The challengers contest the administration claim that urgent action is needed to protect Americans from terrorist attacks. They stress that the government did not previously ask the Supreme Court to intervene, even when lower courts denied earlier emergency applications seeking to lift the injunctions.

 

"This is different from the kind of case you would expect the Supreme Court to grant the extraordinary relief of a stay, because of the lack of any demonstrable urgency or harm and because the law and the facts are on our side," said American Civil Liberties Union lawyer Omar Jadwat.

 

On Friday, the court asked the challengers, including the ACLU and Hawaii, to file responses to the Trump requests by June 12. The administration is then likely to file its own response to the challengers' legal arguments before the justices issue an order granting or denying the administration's applications.

 

One thorny issue the Supreme Court may have to resolve if it grants the stay is whether the 90-day ban Trump sought to impose would begin from the day of the court's action or whether the clock has been ticking throughout the litigation, meaning it would expire in mid-June. Challengers will argue for the latter, which would mean it is almost set to expire. That would limit the practical impact if the application were granted.

 

The court's conservative majority includes Justice Anthony Kennedy. He sometimes sides with the court's four liberals and could be the pivotal vote.

The travel ban's challengers have relied in part on a concurring opinion Kennedy wrote in a 2015 Supreme Court immigration case. Kennedy wrote that in the immigration context, the government's actions can be questioned if there is evidence of bad faith.

 

Another conservative justice is the man Trump appointed to the high court, Neil Gorsuch. During his U.S. Senate confirmation hearing, Gorsuch vowed not to be a rubber stamp for any president when asked about Trump's statements criticizing judges who ruled against the travel ban.

 

If the court agrees with Trump, the 90-day ban on people entering the United States from Iran, Libya, Somalia, Sudan, Syria and Yemen will be immediately revived. The court could also put a 120-day ban on all refugees into effect and allow the administration to consider new vetting procedures.

 

Even if the court allows the travel ban to take effect, the bigger constitutional questions of religious discrimination and presidential powers raised by the order would not be considered by the nine justices until long after the ban periods have ended. The court begins its summer recess at the end of June and would not give the case a full hearing until its return in the autumn, by which time the ban would have lapsed.

 

The emergency applications filed on Thursday night seek to block injunctions issued by judges in Maryland and Hawaii. The Maryland order was upheld on May 25 by the 4th U.S. Circuit Court of Appeals in Richmond, Virginia. The government's appeal of the Hawaii injunction is being considered by the San Francisco-based 9th U.S. Circuit Court of Appeals. That court could issue its decision before the Supreme Court acts on the emergency application.

 

Separate from the emergency application, the court also has to decide whether to hear the government's full appeal of the Virginia-based appeals court ruling.

 

The justices are not required to hear any case, but this one meets important criteria cited by experts, including that it is the federal government filing the appeal and that it involves a nationwide injunction.

 

 

-- © Copyright Reuters 2017-06-03

[AlexRich]

The Constitution of the United States continues to hand the treacherous Trump his ass! Good job founding fathers!

[Srikcir]

10 hours ago, rooster59 said:

the nationwide injunctions blocking the travel ban have caused irreparable harm by "preventing the executive from effectuating his national-security judgment."

I don't think the perceived damage to Trump's ego is grounds to reinstate the ban.

[Jingthing]

trump will probably lose the case.

Good riddance.

 

[Andaman Al]

If Trump loses I so want Gorsuch to be Judge number 5.

[Traveler19491]

With Gorsuch now on the bench, this is going to be interesting. No less personages than Alito and Thomas have been known to crush "conservative" hopes. How sweet the tears of the right if Gorsuch does, in fact, recognize the First Amendment's ban on religious discrimination and embraces the left's assertion that Trump's past almost endless references to banning Muslims should be admissible evidence of intent? What the right fails to acknowledge is that, in this case, they have everything to lose and nothing to gain, while the left has everything to gain and nothing to lose. If the Court sides with Trump we just return to what already was, outrageous though it would be. Whereas, if the Court sides with the left, Trump will have suffered a crushing defeat, his power will be severely limited with respect to fulfilling his "promise" to keep Muslims out, and the right will have no one to blame but those who will have "betrayed" them. The right's religious bigotry will also lose out, big time. The stakes are high for the orange one and his fans.

[Scott]

An off-topic post has been removed.  

[thaibeachlovers]

Just a wild guess, but the justices will have seen what happened in the UK last night and it might affect their decision.

[Andaman Al]

1 hour ago, thaibeachlovers said:

Just a wild guess, but the justices will have seen what happened in the UK last night and it might affect their decision.

So does your wild guess now include that the USA is going to include the UK in its ban? Or just ......................muslims from the UK?

 

If a terrorist wants to get in to the USA then Trumps plan is not going to stop them is it. Why would they apply for a visa to live in the USA? Just go to disneyland with their family or attend an international convention and then disappear. Fake passports etc are not anywhere near beyond the resourceful nature of ISIS with its billion dollar backing. In fact for 350k or so the terrorist could get a genuine Cypriot passport (EU) which would allow visa on entry almost everywhere. Hardly a big price to pay for  a well organised terrorist attack is it.

[mrwebb8825]

Someday the hippocratic sore losers brigade will start to realise that this whole issue is because of who issued it and nothing else. Thankfully the supreme court isn't a bunch of democratic losers.

Obama did the same thing and not a single 1 of you cared. Same area. Same religious majority. Same reasons.

[Skywalker69]

[dutchisaan]

48 minutes ago, mrwebb8825 said:

Someday the hippocratic sore losers brigade will start to realise that this whole issue is because of who issued it and nothing else. Thankfully the supreme court isn't a bunch of democratic losers.

Obama did the same thing and not a single 1 of you cared. Same area. Same religious majority. Same reasons.

The hippocrit in this case is you. Because it has nothing to do who ordered it, but has everything to do with the constitution of the USA.

The problem is that the clown in the WH didn't bother to read it, and I think neither did you.

[bangsaenguy]

Trump's travel ban is designed terrorism if I am not mistaken. The worst terrorist attack was 9/11. 17 of the 19 terrorists were Saudi nationals but Saudi's name is missing from the list of banned travelers. What good is the ban?

[ilostmypassword]

2 hours ago, mrwebb8825 said:

Someday the hippocratic sore losers brigade will start to realise that this whole issue is because of who issued it and nothing else. Thankfully the supreme court isn't a bunch of democratic losers.

Obama did the same thing and not a single 1 of you cared. Same area. Same religious majority. Same reasons.

False.

http://foreignpolicy.com/2017/01/30/sorry-mr-president-the-obama-administration-did-nothing-similar-to-your-immigration-ban/

http://www.politifact.com/truth-o-meter/statements/2017/jan/30/donald-trump/why-comparing-trumps-and-obamas-immigration-restri/

http://www.businessinsider.com/big-differences-between-trumps-immigration-ban-obamas-2011-policy-2017-2

http://www.snopes.com/president-obama-ban-muslims-2011/

[Srikcir]

5 hours ago, mrwebb8825 said:

hippocratic sore losers brigade

A brigade of doctors? How does that make any sense?

[Jingthing]

56 minutes ago, Srikcir said:

A brigade of doctors? How does that make any sense?

trumpists know the best words.