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Federal government files brief in travel-ban litigation

Acting Solicitor General Jeffrey Wall was at the Supreme Court yesterday for the formal investiture of Justice Neil Gorsuch, but that was only part of Wall’s busy day. Shortly after the investiture ceremony, the Trump administration filed the next installment in the series of briefs supporting its request to allow President Donald Trump’s March 6 executive order, which bans entry into the United States by residents of six Muslim-majority countries, to go into effect until the justices can review the lower courts’ rulings blocking the implementation of the order. The federal government urged the court to reinstate the order, warning that leaving the freeze of the so-called “travel ban” in place “will continue to cause irreparable harm to the government and the public” by “preventing the President from effectuating his national-security judgment.”

In its original round of filings, submitted on June 1, the federal government asked the Supreme Court to step into two different challenges to the travel ban. The first challenge came to the justices from the U.S. Court of Appeals for the 4th Circuit, which had upheld a Maryland judge’s order blocking implementation of the ban. And the second came to the justices via Hawaii, where another federal judge had put the ban on hold. But the U.S. Court of Appeals for the 9th Circuit had not yet weighed in on the merits of the Hawaii judge’s ruling when the government first went to the Supreme Court earlier this month. The 9th Circuit’s decision came last week, prompting the government to seek (and the Supreme Court to grant) a new round of briefing.

In its decision keeping the travel ban on hold, the 4th Circuit pointed to the Constitution’s bar against favoring one religion over another, known as the establishment clause: Although the president’s order indicates that it was intended to protect the United States from foreign terrorists, the court reasoned, some of the president’s statements suggest that the order was actually intended to exclude Muslims from the country. The 9th Circuit’s ruling rested on a different ground: that court’s conclusion that the president’s executive order went beyond the power that Congress gave him under federal immigration laws. In yesterday’s brief, the government complained that the 9th Circuit’s ruling – which the government described as “novel and extraordinary,” and not in a complimentary way – reflected “an unprecedented view of the President’s authority over the Nation’s borders and on the court of appeals’ overt disagreement with his assessment of national-security risks.”

The government repeats its argument, made throughout the litigation in the travel-ban cases, that, as a general rule, courts should not review decisions to bar noncitizens from entering the United States. To the extent that the Supreme Court has made an exception to that rule, it has done so only when a U.S. citizen argued that the decision violated the citizen’s own constitutional rights.

But even if the 9th Circuit has the power to review the order, the government contends, there is an equally fundamental problem: The court of appeals simply got federal immigration laws wrong. These laws give the president “exceedingly broad discretion” on immigration matters, the government asserts. There is no need for him to show that the country would be harmed if the people covered by the executive order were allowed to enter the United States.

The court of appeals also misunderstood the rationale for the order itself, the government contends. The order does not rest on the assumption that nationality, standing alone, can indicate whether someone is likely to be a terrorist. Rather, the government explains, the president’s “concern was the willingness and ability of certain foreign governments to provide information about their own nationals.”

Hawaii is scheduled to file its response to yesterday’s brief by noon on June 20.

Recommended Citation: Amy Howe, Federal government files brief in travel-ban litigation, SCOTUSblog (Jun. 16, 2017, 2:12 PM),