The fate of
President Donald Trump's order to ban travelers from six predominantly Muslim
nations, blocked by federal courts, may soon be in the hands of the
conservative-majority Supreme Court, where his appointee Neil Gorsuch could
help settle the matter.
After the
Richmond-based 4th U.S. Circuit Court of Appeals declined on Thursday to lift a
Maryland federal judge's injunction halting the temporary ban ordered by Trump
on March 6, Attorney General Jeff Sessions said the administration would appeal
to the Supreme Court.
A second
regional federal appeals court heard arguments on May 15 in Seattle in the
administration's appeal of a decision by a federal judge in Hawaii also to
block the ban. A ruling by the 9th U.S. Circuit Court of Appeals is pending.
The Justice
Department has not made clear when the administration would make its formal
appeal or whether it would wait for the 9th Circuit ruling before appealing.
If they take
it up, the justices would be called upon to decide whether courts should always
defer to the president over allowing certain people to enter the country,
especially when national security is the stated reason for an action as in this
case. They also would have to decide if Trump's order violated the U.S.
Constitution's bar against the government favoring one religion over another,
as the ban's challengers assert.
Gorsuch's
April confirmation by the Republican-led Senate over Democratic opposition
restored the court's 5-4 majority, which means that if all the conservative
justices side with the administration the ban would be restored regardless of
how the four liberal justices vote.
During his
Senate confirmation hearing, Gorsuch was questioned about Trump's criticism of
judges who ruled against the ban. Gorsuch avoided commenting on the legal
issue, saying only that he would not be "rubber stamp" for any
president.
While the
justices could decide in the coming weeks whether to hear the case, they likely
would not hold oral arguments until late in the year, with a ruling sometime
after that. A final resolution may not come until perhaps a year after Trump
issued the executive order.
The justices
are not required to hear any case, but this one meets important criteria cited
by experts, including that it would be the federal government filing the appeal
and that it involves a nationwide injunction.
The
administration could file an emergency application seeking to put the order
into effect while the litigation on its legality continues. At least five
justices must agree for any such request to be granted.
While the
court could split 5-4 along ideological lines, it also is possible some
conservative justices could join the liberals in overturning the travel ban,
libertarian law professor Ilya Somin of George Mason University said.
"Conservatives
in other contexts often take a hard line against any kind of government
discrimination (based) on race or religion or the like, even if the motivation
may be benign. Also conservatives have concerns about government infringements
on religion," Somin said.
The 4th
Circuit said the ban's challengers, including refugee groups, in the case
argued by the American Civil Liberties Union were likely to succeed on their
claim that the order violated the Constitution's prohibition on the government
favoring or disfavoring any religion. In the 10-3 ruling, three
Republican-appointed judges dissented.
The
Republican president's March 6 order, replacing an earlier Jan. 27 one also
blocked by the courts, called for barring people from Iran, Libya, Somalia,
Sudan, Syria and Yemen for 90 days while the government implements stricter
visa screening. It also called for suspending all refugee admissions for 120
days.
KENNEDY'S
REASONING
The travel
ban's challengers may take some comfort from the appeals court ruling's
reliance on a concurring opinion in a 2015 Supreme Court immigration case by
Justice Anthony Kennedy, a conservative who sometimes sides with the court's
liberals in big cases.
In the 2015
case, Kennedy wrote that in the immigration context, the government's actions
can be questioned if there is evidence of bad faith.
"As
with any opinion by Justice Kennedy, I think the million-dollar question is
just what he meant in his concurrence, and this may be a perfect case to find
out," University of Texas School of Law professor Stephen Vladeck said.
In
Thursday's ruling, 4th Circuit Chief Judge Roger Gregory wrote that the
plaintiffs had shown there was "ample evidence" of bad faith, which
gave the green light to probe whether there were reasons for the order other
than the administration's stated national security rationale.
The
administration has argued the temporary travel ban was needed to guard against
terrorist attacks. Gregory wrote that the order uses "vague words of
national security, but in context drips with religious intolerance, animus, and
discrimination." Trump during the presidential campaign called for a
"total and complete shutdown of Muslims entering the United States."
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