Trump Will Appeal Travel Ban To Supreme Court

Well, Trump did warn he would appeal the travel ban all the way to the Supreme Court if he had to, and that's precisely what he plans on doing.

On Thursday afternoon, shortly after the 4th U.S. Circuit Court of Appeals, in a 10-3 vote that Trump's travel ban likely violates the constitution and ruled against the executive order, Attorney General Jeff Sessions said the Justice Department will ask the Supreme Court to review the appeals court ruling. The 4th Circuit (based in Richmond, Va) is the first appeals court to rule on the revised travel ban unveiled in March. A second appeals court, the 9th U.S. Circuit based in San Francisco, is also weighing the revised travel ban after a federal judge in Hawaii blocked it.

The first travel ban issued Jan. 27 was aimed at seven countries and triggered chaos and protests across the country as travelers were stopped from boarding international flights and detained at airports for hours. Trump tweaked the order after the 9th U.S. Circuit Court of Appeals refused to reinstate the ban. Following the revision, Trump's administration had hoped it would avoid the legal problems that the first version from January encountered, but it was not meant to be.

The new version made it clear the 90-day ban covering those six countries doesn't apply to those who already have valid visas. It got rid of language that would give priority to religious minorities and removed Iraq from the list of banned countries. But critics said the changes don't erase the legal problems with the ban.

As described previously, a core question in the case before the 4th Circuit was whether courts should consider Trump's public statements about wanting to bar Muslims from entering the country as evidence that the policy was primarily motivated by the religion. Trump's administration argued the court should not look beyond the text of the executive order, which doesn't mention religion. The countries were not chosen because they are predominantly Muslim but because they present terrorism risks, the administration said.

But Chief Judge Roger L. Gregory wrote that the government's "asserted national security interest ... appears to be a post hoc, secondary justification for an executive action rooted in religious animus and intended to bar Muslims from this country."

President Donald Trump's revised travel ban "speaks with vague words of national security, but in context drips with religious intolerance, animus and discrimination," the appeals court also said Thursday in ruling against the executive order.

To this, Jeff Sessions responded that the court's ruling blocks Trump's "efforts to strengthen this country's national security" adding that Trump is not required to admit people from "countries that sponsor or shelter terrorism until he determines that they can be properly vetted" and don't pose a security threat.

The three dissenting judges, all appointed by Republican presidents, said the majority was wrong to look beyond the text of the order. Calling the executive order a "modest action," Judge Paul V. Niemeyer wrote that Supreme Court precedent required the court to consider the order "on its face." Looked at that way, the executive order "is entirely without constitutional fault," he wrote.

As for SCOTUS, according to AP, the Supreme Court would likely step into the case if asked as the justices almost always have the final say when a lower court strikes down a federal law or presidential action. Trump could try to persuade the Supreme Court to allow the policy to take effect, even while the justices weigh whether to hear the case, by arguing that the court orders blocking the ban make the country less safe. If the administration does ask the court to step in, the justices' first vote could signal the court's ultimate decision.

Ilya Somin, a law professor at George Mason University, said if the Supreme Court follows a partisan divide, the Trump administration may fare better since five of the nine are Republican nominees. Still, he said, it's difficult to make a confident prediction because "Supreme Court justices don't always vote in ideological lockstep."

Critics of Trump's order were delighted with the outcome:

The case ruled on by the 4th Circuit was originally brought in Maryland by the American Civil Liberties Union and the National Immigration Law Center on behalf of organizations as well as people who live in the U.S. and fear the executive order will prevent them from being reunited with family members from the banned countries. 

 

"President Trump's Muslim ban violates the Constitution, as this decision strongly reaffirms," said Omar Jadwat, director of the ACLU's Immigrants' Rights Project, who argued the case. "The Constitution's prohibition on actions disfavoring or condemning any religion is a fundamental protection for all of us, and we can all be glad that the court today rejected the government's request to set that principle aside."

And now it will be up to the Supreme Court to rule once again on this issue, hopefully finally making it go away. Travel ban aside, the upcoming case will be a litmus test of just what (and how strong) the ideological leanings of the revised SCOTUS bench are, now that Gorsuch is in town.

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