President Donald Trump’s administration asked the U.S. Supreme Court to immediately reinstate his stalled travel ban, aiming to reverse a string of courtroom losses and setting up the biggest legal showdown of his young presidency.
The request puts a Trump initiative before the Supreme Court for the first time and brings the nine justices into a national drama over claims that the president is targeting Muslims and abusing his authority. The case will give the first indications of how Chief Justice John Roberts’s court will approach one of the most controversial presidents in the nation’s history.
Trump is asking the court to hear arguments on an expedited basis and to reinstate the executive order in the interim.
At issue is Trump’s executive order temporarily barring entry into the U.S. by people from six predominantly Muslim countries in an effort to protect the country from terrorists. The administration asked the court to let the ban take effect while the justices decide whether to review a lower court ruling that said the policy was "steeped in animus and directed at a single religious group."
As a practical matter, the request for immediate action could determine the fate of the policy, given that the ban would be in effect only for 90 days. The court acts on such requests based on the legal papers without hearing arguments.
A Virginia-based federal appeals court voted 10-3 to uphold a nationwide halt to the policy, saying the travel ban was driven by unconstitutional religious motivations. The majority pointed to Trump’s campaign vow to bar Muslims from entering the country and to the special preference for religious minorities included in an earlier version of the ban. The appeals court’s May 25 opinion also faulted the White House for rushing out the first version without consulting with the national security agencies.
The executive order "speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination," Judge Roger Gregory wrote.
Three dissenting judges pointed to a 1972 Supreme Court decision that said courts shouldn’t second-guess immigration decisions that are based on a "facially legitimate and bona fide reason." Judge Dennis Shedd said the travel-ban ruling would make the country less safe.
“The real losers in this case are the millions of individual Americans whose security is threatened on a daily basis by those who seek to do us harm,” Shedd wrote.
After Trump’s proposed Muslim ban drew criticism during the campaign, he shifted course and called for blocking immigration from countries with a "proven history" of terrorism. The travel policy would temporarily halt issuance of visas to people from Iran, Libya, Somalia, Sudan, Syria and Yemen.
Trumps’ initial travel order -- issued a week after he took office -- threw airports around the world into chaos and prompted an outcry from the technology industry and U.S. universities before it was blocked in court. The president signed the revised version on March 6, and he later said it was needed to protect against "radical Islamic terrorists."
Kennedy Opinion
A central question in the legal fight is whether a 2015 opinion written by Justice Anthony Kennedy, the likely swing vote for the Supreme Court, gives judges broader leeway to intervene in immigration decisions.Kennedy said courts should defer to executive branch decisions on immigration "absent an affirmative showing of bad faith." His opinion came in the case of a U.S. citizen seeking to challenge the denial of her Afghan husband’s visa application. In blocking Trump’s travel ban, the appeals court pointed to that language and said the administration acted in "bad faith."
Kennedy wrote only for himself and Justice Samuel Alito in the 2015 case, but the opinion represented the controlling reasoning for the splintered court.
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