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Government responds to 9th Circuit ruling, asks for more briefing (UPDATED 5:45 p.m.)

UPDATED: This afternoon the Supreme Court ordered the federal government and the challengers to file additional briefs regarding the government’s request to reinstate the travel ban. The justices instructed the government to file its supplemental brief by 3 p.m. on June 15; the challengers will file their response by 12 p.m. on June 20; and the government will file its reply by 12 p.m. on June 21.

Yesterday the U.S. Court of Appeals for the 9th Circuit rejected the Trump administration’s request to reinstate the president’s March 6 executive order, often known as the “travel ban,” which put a temporary hold on visas for travelers from six Muslim-majority countries and suspended the admission of refugees into the United States. Today the federal government went to the U.S. Supreme Court, seeking to file additional briefs to address the 9th Circuit’s ruling. The government suggested a new schedule that would have all of the new briefs filed by June 22, the last day on which the justices are currently slated to meet to add new cases to their docket for the fall. But lawyers for the challengers in the case quickly opposed the proposed timeline, citing concerns about possible delays.

In today’s filing, which was signed by Acting Solicitor General Jeffrey Wall, the federal government noted that, because the 9th Circuit relied on a different theory from the U.S. Court of Appeals for the 4th Circuit and a Hawaii district court to uphold the Hawaii court’s order blocking the implementation of the travel ban, the Justice Department could file a new request to reinstate the travel ban that would “specifically address” the 9th Circuit’s reasoning. But the “more efficient” path, the government submitted, would be for it to file new briefs to supplement its existing request to restore the ban.

Under the new schedule proposed by the government, it would file a brief on the afternoon of Thursday, June 15, with Hawaii’s brief to follow on the afternoon of Monday, June 19. The government would then file its reply on June 21, which would allow the justices to consider its request at their private conference the next day, June 22. The government also once again asked the justices to treat its request to reinstate the ban as a request to review the 9th Circuit’s ruling on the merits and to review the case together with the 4th Circuit’s decision.

In a letter to the court, attorney Neal Katyal – who argued successfully in the 9th Circuit on behalf of Hawaii – opposed the government’s request, voicing several objections. First, although Katyal agreed that both sides should have the chance to address yesterday’s 9th Circuit decision, he disagreed about the need for the government to file two more briefs. If the court grants the government permission to file a reply, he observed, the two sides will have filed five briefs on the government’s request, which could delay the justices’ consideration of the matter.

Katyal offered two alternative briefing schedules. The first would only allow two additional briefs (one from each side), rather than the three that the government had proposed: The government would file its brief on Friday, June 16, at 9 a.m., followed by the challengers’ response at 9 a.m. on Wednesday, June 21. If the court opts to allow three new briefs, however, Katyal urged the justices to require a tighter schedule: The government would still file its opening brief on June 15, but the challengers’ response would not come until the morning of June 20, with the government’s reply due on the morning of June 21. Katyal further explained that the “Monday filing deadline” proposed by the Trump administration “would be very difficult for” the challengers to meet because Katyal is currently “in Utah with very little internet access,” making it “extremely difficult” for him to coordinate with his clients and co-counsel until he returns next Sunday, June 18.

The Supreme Court could act on the government’s request at any time, and is likely to do so given the limited time remaining before the justices’ summer recess.

Recommended Citation: Amy Howe, Government responds to 9th Circuit ruling, asks for more briefing (UPDATED 5:45 p.m.), SCOTUSblog (Jun. 13, 2017, 3:49 PM),