The Supreme Court could rule within days on whether to lift a temporary stay on President Trump’s revised executive order banning travel from six mostly Muslim terrorist hot-spot countries.
Bill Mears at Fox News reports that the issue has become a major test of presidential power, especially in the area of immigration. At issue is whether the ban violates the Religion Clauses of the First Amendment, the Due Process Clause of the Fifth and 14th Amendments, and the ban on nationality discrimination in the issuance of immigrant visas contained in a 65-year-old congressional law.
The Justice Department filed the ruling request with the justices late Thursday, also asking that the federal policy be enforced while the larger issues are litigated.
A federal appeals court in Virginia last month ruled against Executive Order 13769, “Protecting the Nation from Foreign Terrorist Entry into the United States.” A majority of the 4th Circuit appeals court cited then-candidate Trump’s campaign statements proposing a ban “preventing Muslim immigration.”
The Trump administration said that ruling was flawed on several legal fronts, and asserted the president’s broad authority over immigration matters.
A ruling from the San Francisco-based 9th Circuit is still pending, but the Justice Department asked the Supreme Court to get involved in the issue now.
The justices have the discretion to wait indefinitely to decide the broader merits of the case, but will issue an order in the meantime on whether the ban can be temporarily enforced. The federal government asked the high court to allow the order to go into effect now, and proposed oral arguments be held in October.
The White House frames the issue as a temporary move involving national security. A coalition of liberal groups in opposition call the order blatant religious discrimination, since the six countries involved have mostly-Muslim populations: Iran, Libya, Somalia, Sudan, Syria, and Yemen.
This is the White House’s second effort to impose a travel ban. An order issued a week after President Trump took office was also quickly blocked from taking effect. Nationwide protests were held in many cities and airports.
A major sticking point for the justices will be navigating how much discretion the president really has over immigration. Courts have historically been deferential in this area, and recent presidents including Carter, Reagan and Obama have used it to deny entry to certain refugees and diplomats, including from nations such as Iran, Cuba, and North Korea.
A 1952 federal law– the Immigration and Nationality Act, passed in the midst of a Cold War fear over Communist influence– gives the chief executive broad authority.