Expedite travel ban case

By Hans von Spakovsky

The Heritage Foundation

It looks like the next stop for President Donald Trump’s so-called travel ban is the U.S. Supreme Court.

And chances are we won’t have to wait long to learn the fate of the president’s executive order temporarily suspending entry into the U.S. for individuals from six terrorist safe havens in Africa and the Middle East. Indeed, we may get a decision by the end of June or the beginning of July.

Yes, the ban has already been struck down by two courts of appeals – the 4th and 9th Circuits ruled against the president. But those were political decisions, not legal ones. The judges in those courts ignored binding U.S. Supreme Court precedents that give presidents the authority to suspend the entry of any aliens into the country, something numerous prior presidents, including Barack Obama, have done.

Under those precedents, President Trump’s actions fall fully within the constitutional authority delegated to him by Congress. As five dissenting judges in the 9th Circuit pointed out, “When (courts) are reviewing decisions about who may be admitted into the United States, (the courts) must defer to the judgment of the political branches.”

All of the judges who have ruled against the president have made it clear that they are not deferring to the president’s judgment on the national security need to temporarily suspend the entry of aliens from Syria, Libya, Iran, Somalia, Yemen and Sudan to ensure that we have the vetting procedures in place to prevent terrorists from getting into the country.

Supreme Court

But it now looks as if the battle in the lower courts may be over. On June 1, the U.S. Justice Department filed a petition for certiorari with the Supreme Court, asking the justices to review and overturn the 4th Circuit’s decision. The next day, the court ordered the challengers in the case to file their response to the government’s petition by June 12.

The challengers met that deadline, filing a brief asking the court not to take the case but to let the lower court decisions stand. On June 13, the court told the parties to file another round of briefs on the government’s request for a stay (or lifting) of the injunction against the executive order by noon Wednesday. This is the day before the last Supreme Court conference. It is at those conferences that the justices, meeting in private, vote on whether to take up a case that has been appealed to the court.

Given the national security issues at stake in the global war on terrorism, it seems almost certain that the Supreme Court will grant the Justice Department’s petition and accept this case for review. At the very least, the court will decide whether to issue a stay while the case is pending. But then the question arises of how quickly the court will resolve the substantive merits if it accepts the case for review.

The Supreme Court’s term normally winds up at the end of June. There are no more oral arguments scheduled before the court. Once the term ends, the justices will not be back until October.

So what will happen with the travel ban case if the court decides to take it at the June 22 internal conference?

Even if the court decides to take the case, it could put off hearing arguments until October. But that seems unlikely. The court already shortened the usual deadlines for filing briefs with the court.

Hans A. von Spakovsky is a senior legal fellow at The Heritage Foundation. Along with John Fund, he is the co-author of “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk” and “Obama’s Enforcer: Eric Holder’s Justice Department.”