http://www.huffingtonpost.com/entry/trump-travel-ban-supreme-court_us_5930da0ae4b0c242ca229563
Nick Visser reports:
“The Trump administration on Thursday asked the U.S. Supreme Court to revive the president’s controversial executive order that intended to temporarily bar travel to the U.S. by citizens of six Muslim-majority countries.
Lawyers at the Department of Justice filed two emergency applications with the nation’s highest court asking it to block two lower court rulings that effectively halted the implementation of his second travel ban, which also halted refugees seeking to enter the U.S. The filing asks for a stay of a ruling made last week by the U.S. Court of Appeals for the 4th Circuit and another stay of an injunction made by a judge in Hawaii.
The Justice Department has asked for expedited processing of the petitions so the court can hear the case when it begins a new session in October.
“We have asked the Supreme Court to hear this important case and are confident that President Trump’s executive order is well within his lawful authority to keep the Nation safe and protect our communities from terrorism,” Justice Department spokeswoman Sarah Isgur Flores said in a statement. “The president is not required to admit people from countries that sponsor or shelter terrorism, until he determines that they can be properly vetted and do not pose a security risk to the United States.”
The filing drew an almost immediate response from advocacy groups, including the American Civil Liberties Union, which pledged to fight the ban in court yet again.
Trump’s executive order, signed March 6, was the White House’s second travel ban attempt. It sought to bar citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen from entering the United States. The watered-down order came after the bungled rollout of a similar ban, one that included Iraqis, which prompted nationwide protests and its own smack-down by a federal judge in Seattle.
In a 10-3 ruling last week, the 4th Circuit issued perhaps the biggest setback to the White House when a full panel of its judges refused to lift a nationwide injunction that halted key aspects of the revised ban.
U.S. Chief Circuit Judge Roger Gregory wrote at the time that the order “speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”
“Congress granted the President broad power to deny entry to aliens, but that power is not absolute,” Gregory continued. “It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation.”
Any travel ban’s chances have been harmed by Trump’s own rhetoric on the campaign trail, when he promised to completely ban Muslims from entering the country. He later backed down on those statements, but several judges cited them as evidence that the White House was targeting members of a religious group, not from any specific countries.
In one ruling, U.S. District Judge Derrick Watson said the president’s “plainly worded statements” betrayed the ban’s “stated secular purpose.” U.S. District Judge Theodore Chuang said Trump’s statements provided “a convincing case that the purpose of the second Executive Order remains the realization of the long-envisioned Muslim ban.”
Throughout the continued defeat in the courts, Trump and his administration have defiantly pledged to fight for the order and have denied the ban is intended to target members of the Islamic faith. After Watson ruled on the second order in Hawaii, the president called the decision “flawed” and slammed it as “unprecedented judicial overreach.”
“This ruling makes us look weak, which by the way we no longer are,” Trump said.
At the time, he pledged to bring the fight to the Supreme Court, a call Attorney General Jeff Sessions reiterated last month.”
************************************************
Most experts believe that the Administration has a reasonable chance of prevailing if the Court takes the case. But, I’m not sure that heaping intemperate insults on U.S. trial and appellate judges, and then asking the top U.S. judges to invoke emergency procedures to bail you out of difficulties caused to a large extent by your own inflammatory rhetoric is necessarily a winning litigation strategy. We’ll soon see how this plays out. Because the Court’s term concludes at the end of this month, expect a decision on the Government’s emergency requests by then. Even if the Court agrees to take the case, it’s unlikely that arguments on the merits will be heard until the beginning of the 2017 Term next Fall.
Thanks to Nolan Rappaport for sending me this link.
PWS
06-02-17
I agree that Trump has antagonized the federal bench, but I do not expect the Supreme Court to let that influence its decision.
The issue here is whether Mandel should be overruled. The fourth circuit has bypassed Mandel with its ruling that the courts can look behind the executive order if there are “allegations of bad faith.” The problem with this ruling is that Mandel is meaningless if the courts just need a plaintiff alleging bad faith to justify looking behind the language of the order.
Remember, Judge Gregory said that his review of the order’s language would have been the end of the matter and caused him to rule in favor of the government IF THERE WERE NO ALLEGATIONS OF BAD FAITH.
Judges are human. I never found that treating the court system and judges with intemperance and disrespect helped a party to get their point across or to persuade courts to help them out. That’s particularly true with a Court like the Supreme Court that has absolute discretion as to which cases they choose to hear. Yes, higher court judges are perfectly willing, on occasion, to “ream out” their lower court colleagues. But, they consider that their prerogative; they don’t appreciate it when parties take it upon themselves to disrespect lower courts and their judges. Requiring some respect from the Executive Branch is certainly tied in with the Court’s substantive role in administering and dispensing justice. I could see the Court wanting to remind Trump that while he is President, within the legal system he’s just another party. There is no legal requirement that they take this case or grant Trump’s requests. The Supreme Court turns down parties who probably should have won below every day, without giving any reasons. So, I’m less sure than you (and most other observers) that Trump’s arrogance and intemperance won’t be a factor here.
Although I spent many years invoking the “Mandel doctrine” in behalf of my INS client, I never thought is was very well reasoned or a great work of jurisprudence. So, if the Court revisited it, that wouldn’t be all bad, in my view. If I were Trump, I’d actually prefer that they not do it in the Travel Ban cases. Trump, Sessions, Kelly, Bannon, Miller,& Co. have given the plaintiffs some very good arguments for modifying or distinguishing Mandel in this particular situation. Trump has highlighted all of the “downsides” of Mandel, while showing few upsides.
As I’ve pointed out before, there are sound reasons why all the Executives since Mandel was decided have avoided pushing the envelope this far. I have conceded that you might be right and that Trump will not only get his review, but win a smashing legal victory. But, I’m not as sure as you are that this will be the result, even with a Court configuration that should favor the Administration. But, the Term is almost over, so we’ll find out at least something very shortly.
Best,
Paul
I loaned my crystal ball to a friend, so I can’t say what will happen with the Supreme Court and Mandel either. But I can say that I think Mandel makes a lot of sense.
As I said previously, Presidents have access to classified information, briefings from intelligence and security agencies, advice from a national security counsel and so on. When a president makes a national security decision, I don’t want someone like Gregory to decide on the basis of what he reads in the pleadings and the newspapers that the president is wrong.
And it seems to me that his blindness to what he is doing is based on the same thing that is robbing you of rationality on this issue. You have nothing but contempt for Trump. You think he is a bigot who hates Muslims, so no matter what he says or does, you are going to think he is lying. And if you are Gregory, you will search through Trump’s background to see if you can find anything to base a finding of bad faith on. That’s exactly what the Supreme Court tried to prevent when they wrote Mandel.
Where were you when Obama put the list that Trump is using together for the visa waiver program. He was so concerned about terrorism in those countries that he categorically barred people who had been in them for a single day from using the visa waiver program. He wanted them to have the additional vetting of a personal interview, etc., that is required for a visa. Why weren’t you screaming about Obama discriminating against Muslims?
All Trump has done is to take that same list and say that anyone who is a national of one of those countries needs additional vetting before we let him into the US. And he suspended their entries for 90 days to put together the questions that would need to be asked for the additional vetting.
If Obama had issued the same order, no one would have said a word. In fact, Gregory said that in his decision. But for the allegations of bad faith……
There is a big difference between barring someone from the visa waiver and barring them from getting a visa. And none of these countries were on the visa waiver list anyway, so the practical effects were quite minimal.
Best,
Paul
It’s hard to explain these things in brief notes. The VWP safety act was enacted in response to the terrorist strikes in Europe by an overwhelmingly bipartisan congress. They were afraid that terrorists who are citizens of a VWP countries in Europe would come here using the program.
The bill they enacted has a provision barring VWP citizens from using the program if they have visited any country on a list of countries with known terrorist ties. This is the statutory criterion for placing countries on that list:
(I) whether the presence of an alien in the country or
area increases the likelihood that the alien is a credible threat to the national security of the United States;
(II) whether a foreign terrorist organization has a significant presence in the country or area; and
(III) whether the country or area is a safe haven for terrorists.
Obama made that finding with respect to five of the countries and congress started the list with two. These are the seven countries on Trump’s list.
The significance of this list is that Congress and Obama believed that citizens of VWP countries who have visited one of the countries on the list need more vetting than the simple online registration for the VWP. They want them to have in person interviews, etc.
Trump’s travel ban is very similar. He isn’t isn’t barring anyone from getting a visa. He is just saying that they need additional vetting, and the basis of his concerns is the same as the concerns congress and Obama had regarding people who spent any time in those places.
The difference is that the additional vetting system for VWP nationals already existed. Trump had to create one for the additional vetting he though necessary. So he issued a 90 day suspension. That is not barring them from getting a visa. When Obama’s agency heads told the public that they couldn’t do background investigations on Syrian refugees, he extended the background investigation to two years. That’s a lot longer than 90 days.
Also, it would be interesting to find out how many people excluded from the VWP for visiting one of the seven countries were able to get a visa to come to the US.
If you were a consulate officer interviewing a young man from a VWP country who had spent a few weeks in Syria, how likely is it that you would believe that he just went there for a vacation and give him a visa to come to the US?
I will be surprised if any of them got visas to come to the US.