This should be good.
The Trump Administration late Thursday appealed the ban of its travel ban to the Supreme Court. The outlook there to overturn the Fourth Circuit ruling and hear oral arguments is uncertain. But it’s certain to be closely-watched as an early case involving Trump appointee Justice Neil Gorsuch and the newly-reconstituted nine-justice bench.
This is actually the administration’s second controversial attempt to impose a temporary travel ban on citizens from seven majority Muslim countries — Libya, Syria, Somalia, Sudan, Yemen, Iran and Iraq. The first was struck down by the Ninth Circuit.
A revised executive order, excluding Iraq, substituted national security reasons for religious ones. But it was struck down, 10-3, last week by Fourth Circuit judges. Chief Judge Roger Gregory wrote the president’s national security claims were mere pretext for unlawful animosity toward Muslims and discarded Trump’s argument as an effort to deliver on campaign promises to bar Muslims from entering the United States.
Gregory went back to Trump statements made in the 2016 campaign and while signing the executive order, claiming courts must look beyond an order’s seemingly neutral language. Gregory charged Trump’s order “speaks with vague words of national security, but in context drips with religious intolerance, animus and discrimination.”
In dissent, Judge Paul Niemeyer predicted, “The Supreme Court surely will shudder at the majority’s adoption of this new rule that has no limits or bounds, one that transforms the majority’s criticisms of a candidate’s various campaign statements into a constitutional violation.”
Administration attorneys maintain the president has broad constitutional authority to control immigration and national security, adding those circuit judges should consider only the executive order’s language, not second-guess presidential motivations.
The Supreme Court, Justice Department lawyers wrote, “has never invalidated religion-neutral government action based on speculation about officials’ subjective motivations drawn from campaign-trail statements by a political candidate.”
Five of the newly-restored nine justice Supreme Court roster must agree to hear the case, which normally would take months of preparation for oral argument. The Court is scheduled to recess at the end of June.
One other wrinkle: These past 120-plus days of legal wrangling actually concern a travel ban that is scheduled to last only 90 days if ever implemented, allowing the government time to devise stricter vetting procedures for travelers.