President Trump’s lawyers asked the Supreme Court late Thursday to revive his temporary ban on foreigners arriving from six majority-Muslim nations, setting the stage for a potentially far-reaching ruling on the president’s power to control immigration.
At issue is whether Trump’s revised travel order is a legitimate effort to protect the nation from terrorism or a thinly veiled scheme to screen out Muslims.
To resolve that question, the Supreme Court would have to decide whether the president has the final word on the rules for admitting foreigner visitors, immigrants and refugees.
In a lengthy appeal filed Thursday evening, Justice Department lawyers asked the high court for an emergency order that revives the travel ban, and they urged the justices to review and reverse last week’s ruling by the U.S. 4th Circuit Court of Appeals, which declared it unconstitutional.
That decision “globally enjoins a formal national security determination by the president of the United States, on the basis that he — and, by implication, the Cabinet-level officials who recommended this measure — acted in bad faith,” said acting Solicitor Gen. Jeffrey Wall.
The administration is seeking a fast decision from the high court. The justices usually go on a summer recess at the end of June after having issued their opinions in all the pending cases.
The travel ban case will probably be handled as an emergency matter by the high court.
Nearly all the lower courts that have ruled so far have found that while the president has broad power in the area of immigration, Trump’s order was unconstitutional nonetheless because it amounted to religious discrimination. In doing so, judges cited Trump’s own words, including his campaign promise to enact “a total and complete shutdown of Muslims entering the United States.”
Last week, the 4th Circuit Court, based in Virginia, blocked enforcement of Trump’s order on a 10-3 vote. It “speaks with vague words of national security, but in context drips with religious intolerance, animus and discrimination,” wrote Chief Judge Roger Gregory.
The administration’s lawyers say this decision, and the others like it, were wrong according to both the Constitution and federal immigration laws. They say the Constitution makes clear that federal executives control immigration, while immigration laws say the president may “suspend the entry of all aliens or any class of aliens” if he thinks they “would be detrimental to the interests of the United States.”
The court will consider the scaled-down, second order issued in mid-March. It temporarily suspends entry for nationals from six countries — Iran, Libya, Somalia, Sudan, Syria and Yemen — where the administration sees “heightened risks” of terrorism.
The ban applies only to foreigners who were outside the United States and did not have a valid visa to travel to this country. It did not apply to lawful permanent residents or foreign nationals who had been admitted to the country.
The justices are now likely to ask for a quick response from lawyers for the American Civil Liberties Union who represent the plaintiffs.
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