Trump administration lawyers have asked the Supreme Court to decide a major constitutional question on the president's power to ban foreign travelers, but their late Thursday appeal came with a puzzling request.
In a 356-page appeal petition, the lawyers asked the justices to review this fall a lower court's ruling that President Trump's order banning some travelers from six majority-Muslim countries reflects unconstitutional discrimination on religious grounds. The president has "broad authority to suspend" the entry of foreigners, they said.
At the same time, in a separate brief the lawyers urged the high court to issue an emergency ruling that immediately revives Trump's travel order, which, they said, "places a temporary 90-day pause" on new entrants from the six nations.
Legal experts have been quick to point out an obvious problem. If the justices agree later this month to hear the case in the fall, and they allow Trump's order to take effect, the 90-day "pause" would run out before October, when arguments could be scheduled. The case would be moot before it could be heard.
Marty Lederman, a Georgetown University law professor, noted a more immediate problem. Trump's order, which was revised from his original version that was blocked by lower courts, took effect on March 16, to run "for 90 days from the effective date of this order." Since no judge has blocked that part of order, Lederman said, it runs out in mid-June.
"As far as I can tell, nowhere in its briefs does the government disclose that all of this urgent briefing and pleas for expedition is rather beside the point, because by its own terms, the 'entry ban' expires less than two weeks from now," he wrote on the Take Care blog, a legal website focused on issues of executive power.
The administration's lawyers contended that the 90-day time limit was put on hold when the other parts of the executive order were blocked. But that issue has not been clearly resolved.
The timing issue complicates what would already be a difficult decision for the nine justices. Usually, the major clashes involving a president's assertion of power take several years to develop. It was in the fourth year of President George W. Bush's term, for example, when the justices challenged his go-it-alone approach to the U.S. military prison at Guantanamo Bay, Cuba. And it was in the fourth year of President Obama's term when the court took up the constitutional challenge to his healthcare law.
But Trump suffered a broad defeat for his first travel order in just his second week in office. Since then, the travel order, though revised, has been suspended nationwide by federal judges in Hawaii and Maryland. Last week, the 4th Circuit Court of Appeals upheld the Maryland judge's order that prevented Trump's ban from being enforced.
In the administration's appeal to the high court, acting Solicitor Gen. Jeffrey B. Wall argued that the constitutional conflict over the president's authority had taken on greater importance than the details of the travel policy.
"This order has been the subject of passionate political debate," he said. "But whatever one's views, the precedent set by this case for the judiciary's proper role in reviewing the President's national-security and immigration authority will transcend this debate, this order and this constitutional moment. Precisely in cases that spark such intense feelings, it is all the more critical to adhere to foundational legal rules."
It takes the votes of only four of the nine justices to grant review of a case, and the court typically agrees to hear major appeals from the Justice Department. The arrival of new Justice Neil M. Gorsuch is expected to bolster the administration's position.
However, it would take five votes to issue a ruling or to grant the request to put Trump's temporary order into effect. And Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy, who are likely to be the deciding votes, may not be inclined to put Trump's order into effect.
In this case, now called Trump vs. International Refugee Assistance Project, the justices need to weigh the matter and decide what to do by the end of this month.
On Friday, they asked for a formal response by June 12 from the American Civil Liberties Union, which represented the Muslim plaintiffs in the Maryland case.
"There is no reason to disturb the 4th Circuit's ruling," Omar Jadwat, the ACLU attorney, said in a statement issued Thursday night. It "enforces a fundamental principle that protects all of us from government condemnation of our religious beliefs."
Josh Blackman, a law professor at the South Texas College of Law in Houston and a frequent legal blogger, predicts the court will agree to hear the case but refuse to lift the orders blocking the travel ban.
"I don't think there would be five votes to lift the stay" and allow the travel order to take effect, he said. But the administration has a strong argument that there are "significant executive power issues" at stake, Blackman said.
But, he added, much may turn on how the justices view the developments of the last few months. "We don't know whether they see Trump as an existential threat or [believe] the lower courts are out of line," he said.
On Twitter: DavidGSavage