On Thursday, June 1, the Department of Justice (DOJ) filed a petition with the Supreme Court seeking review of President Trump’s travel ban. The DOJ made three urgent requests. It asked the Court to review the 4th Circuit Court of Appeals decisions blocking the travel ban, and it made two interim requests for stays. If granted, a stay would temporarily postpone the 4th Circuit ruling, and the travel ban would go back into effect immediately.
The stakes here are high. The Supreme Court is likely to hear the appeal. It takes only four votes to grant the DOJ’s petition, and the case raises major constitutional questions regarding presidential power. The stay applications, however, present a few difficult questions and are likely to be decided within a week. It takes five votes to grant the request, and the Court’s decision will have important consequences, regardless of how it votes.
If the Supreme Court grants the DOJ’s request, the travel ban will go back into effect immediately and it will inevitably expire before the Court has a chance to hear the case. The case could become moot. If the Court denies the stay, however, and the case is heard, important constitutional questions concerning presidential power and immigration will come to the forefront of this hotly contested legal and political debate. The Court will have to examine the lower court rulings and determine if it was appropriate to use Trump’s campaign rhetoric as evidence of discriminatory intent. It will also have to determine whether courts have the authority to scrutinize national security arguments made by a sitting president. Regardless, the precedent set will determine the proper role for the judiciary in reviewing the president’s national security and immigration authority.
What to expect. It is difficult to predict how the Supreme Court is to rule on these issues, but we do know a few things. First, a response to the DOJ will likely be issued by the end of this month. Second, if the case is heard, the Supreme Court is likely to scrutinize the lower courts for second-guessing the President. Whether a court is allowed to try and figure out the intent behind a presidential order will be a central question, and there is case law that provides some insight. In Kleindienst v. Mandel, the Supreme Court ruled that courts cannot “look behind” an act performed by a government employee if there is a “facially legitimate and bona fide reason” for the act. “Even if we have questions about the basis for the President’s ultimate findings — whether it was a ‘Muslim Ban’ or something else — we do not get to peek behind the curtain,” said Judge Jay Bybee. Judge Bybee was one of five judges who dissented when the 9th Circuit Court of Appeals maintained a hold against Trump’s first travel ban.
Finally, no court has ever criticized national security arguments made by a sitting president. The Trump administration made significant changes to the second travel ban to highlight its national security justification, and the Supreme Court will likely take that into consideration.
Here at Berardi Immigration Law, we are committed to providing our clients with the most accurate and up-to-date information. Be sure to check our blog later this week for further updates as they become available!