The Trump administration on Thursday asked the Supreme Court for an emergency review of a lower court ruling that blocks President Trump's executive order that would ban the issuance of new visas for 90 days to individuals from Iran, Libya, Somalia, Sudan, Syria, and Yemen.
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The ban would affect thousands of travelers coming to the United States to see family, attend school, or work in high-demand fields—including health care. The Association of American Medical Colleges in March said about 500 people had applied for medical residency in the United States from the six nations and could be directly affected by the order's 90-day ban.
Background: Appeals court upholds decision blocking executive order
Last month, the 4th U.S. Circuit Court of Appeals in a 10-3 ruling upheld one of several lower court rulings blocking the order—which was a revision of a prior executive order that also was blocked by the courts—from taking effect.
Chief Judge Roger Gregory in the court's majority opinion wrote, "The government's asserted national security interest in enforcing [the six-country visa ban] appears to be a post hoc, secondary justification for an executive action rooted in religious animus and intended to bar Muslims from this country." Gregory added that although the president has broad authority over immigration, "that power is not absolute. It cannot go unchecked."
However, three judges in a dissenting opinion wrote that the court's majority ruling would interfere with the executive branch's judgement and ability to respond to national security threats. The dissenting judges also predicted that the Supreme Court likely would reject the majority's decision to allow statements Trump made throughout his campaign to influence their judgement.
Admin appeals to SCOTUS
According to the Los Angeles Times, the Department of Justice has asked the Supreme Court for an expedited review of the 4th Circuit Court's ruling and urged the high court to allow the order to take effect immediately. In addition, the administration in a separate brief asked the Supreme Court to review the case in full this fall, after the high court returns from a three-month recess scheduled to begin at the end of this month. The administration also asked the Supreme Court to pause a similar case under consideration by the 9th U.S. Circuit Court of Appeals.
According to the Times, the Supreme Court has until the end of June to decide whether to issue an emergency decision on the matter and whether it will hear the case in full. The administration would need five justices to vote in its favor to win an emergency ruling to allow the rule to take effect immediately, while four justices would need to support their separate request to hear the case in the fall.
The high court on Friday asked the plaintiffs in the case by June 12 to issue a formal response to the administration's requests. Omar Jadwat—an attorney with the American Civil Liberties Union (ACLU), which is representing Muslim plaintiffs who filed the suit—in a statement issued Thursday said, "There is no reason to disturb the 4th Circuit's ruling," which he claimed "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, said he thinks the high court will hear the case in the fall but will not issue an emergency ruling. "I don't think there would be five votes to lift the stay," he said, but added that he believes the administration has a solid argument that there are "significant executive power issues" at stake in the case (Savage, Los Angeles Times, 6/2; Ruger, Roll Call, 6/2; Hurley, Reuters, 6/2).
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