US President Donald Trump’s administration on Thursday asked the US Supreme Court to revive his executive order that temporarily bans travelers from six Muslim-majority nations: Iran, Libya, Somalia, Sudan, Syria and Yemen. The travel ban was blocked by lower courts that found it was discriminatory.
Here are answers to some questions about how the case is likely to proceed.
What is the administration formally asking the Supreme Court to do?
The administration filed two emergency applications to lift or “stay” the injunctions placed on Trump’s travel ban by federal district courts in Maryland and Hawaii. The Maryland order was upheld on May 25 by the 4th US circuit court of appeals. An appeal of the Hawaii order is pending before the 9th US circuit court of appeals. The part of the government’s request will probably be acted on quickly by the court. The administration also filed a petition requesting the justices to review the overall legality of the travel ban. Even if the justices agree to take on a complete review, it likely would not happen until the fall, since the court will recess for the summer later this month.
What are the next steps for the Supreme Court?
The court may ask quickly for responses to the applications to stay the injunctions from individuals and groups that challenged the ban in lower courts. Five justices must then agree in order to grant a stay. If that happens, the travel ban is immediately restored. If five votes cannot be reached, the application will be denied. The decision could come within the next two weeks.
The court will likely simultaneously decide whether to review the broader merits of the case. Given the importance of the case, and its high profile, it is likely the justices will review it.
What are the government’s main arguments?
Lower courts have found that the travel ban violates the US constitution’s First Amendment, which bars the government from favouring one religion over another. The courts used statements by Trump and his top officials, both before and after the election, as evidence of hostility toward Muslims that motivated the ban.
As it has argued in lower courts, the Trump administration maintains that the president has “broad discretion” to suspend or ban the entry of foreigners into the US.
Trump’s executive order is based on national security and terrorism-related concerns, and its text is neutral toward religion, the government said. Supreme Court precedent therefore requires lower courts to defer to the government, it added.
But the administration will have to contend with a 2015 opinion by Justice Anthony Kennedy, a frequent swing vote on the bench, who wrote that in the immigration context, the government’s actions can be scrutinised for evidence of bad faith.
The administration said that campaign statements are irrelevant because they were made before Trump took the oath of office, and the president’s national security judgment is enough to bar second-guessing by the courts.
The executive order “is not a so-called ‘Muslim ban,’ and campaign comments cannot change that basic fact,” the administration said.
How might Neil Gorsuch, Trump’s appointee to the Supreme Court, vote in the case?
Gorsuch did not indicate during his confirmation hearings in March how he would vote if a travel ban case came before him. However, in response to senators’ questions about Trump’s criticism of judges who had blocked his first immigration-related executive orders, Gorsuch said it was “disheartening” and “demoralising.” He promised that he would not be a rubber stamp for the president.