The Trump administration is antsy for summer
Karen Bleier/AFP/Getty Images
On Thursday night, the Trump administration asked the Supreme Court to let its travel ban (put on hold in a pair of rulings in federal court) go into effect over the summer. [BuzzFeed News / Chris Geidner]
To accomplish that goal, the administration asked SCOTUS not only for an appeal of the Fourth Circuit’s decision last week keeping the ban on entries from six majority-Muslim countries on hold (which would happen when the court reconvenes in fall). It also asked them to put the Fourth Circuit ruling on ice ASAP while the court made its decision on the appeal — and it asked the Court to put on hold a separate injunction against the travel ban, currently being considered in the Ninth Circuit, even before the circuit court has made its decision.
It’s an unusually aggressive move. But the reasoning is pretty clear: The Supreme Court goes on summer recess at the end of June, so this would be the last chance the Trump administration had to put the travel ban into effect until October or later. [Vox / Dara Lind]
The Court may or may not be as convinced of the urgency. It’s asked for the groups suing the government to submit briefs by June 12 — which is quicker than usual, but also brings us even closer to the end of the term. [Neal Katyal via Twitter]
There are probably four votes on the Court to hear the case in fall. But the stays — both of which the government would need approved to enforce the ban over the summer — need five votes, and it’s not at all clear the government has that many. [NYT / Adam Liptak]
To be clear: Even though the administration has lost consistently in the lower courts, there may be five votes in the Supreme Court (the four conservatives + Justice Anthony Kennedy, presumably) willing to agree that the travel ban is constitutional. [USA Today / Alan Gomez]
But they may not be willing to make that decision so quickly — especially when that means staying a decision that’s still pending in a lower court, which is pretty dang untraditional. [Vox / Dara Lind]
More likely, the Trump administration’s aggressive requests for a stay will simply persuade the Court to agree to hear both cases — both the one the Trump administration lost last week and the one it’s still waiting to hear back from the Ninth Circuit on — on an “expedited” schedule in September. [Josh Blackman]
That option would have the bonus of rescuing the Trump administration from a possible Legal Nightmare Scenario™: The Ninth Circuit could make a ruling that forced the Trump administration to carry out the “review” that was supposed to happen during the travel ban over the summer — keeping the ban on hold, but preventing the administration from being able to go to the Supreme Court to reanimate it. [Take Care Blog / Amir Ali]
There is, however, another Legal Nightmare Scenario™ for the administration, raised by law professor Marty Lederman on Friday. It’s possible to interpret the wording of the current travel ban to say that the ban expires in mid-June whether or not it ever went into effect. The Supreme Court might not agree with this interpretation — but if it did, it could decide that the ban is simply dead by expiration. [Lawfare / Marty Lederman]
www.fotavgeia.blogspot.com
Karen Bleier/AFP/Getty Images
On Thursday night, the Trump administration asked the Supreme Court to let its travel ban (put on hold in a pair of rulings in federal court) go into effect over the summer. [BuzzFeed News / Chris Geidner]
To accomplish that goal, the administration asked SCOTUS not only for an appeal of the Fourth Circuit’s decision last week keeping the ban on entries from six majority-Muslim countries on hold (which would happen when the court reconvenes in fall). It also asked them to put the Fourth Circuit ruling on ice ASAP while the court made its decision on the appeal — and it asked the Court to put on hold a separate injunction against the travel ban, currently being considered in the Ninth Circuit, even before the circuit court has made its decision.
It’s an unusually aggressive move. But the reasoning is pretty clear: The Supreme Court goes on summer recess at the end of June, so this would be the last chance the Trump administration had to put the travel ban into effect until October or later. [Vox / Dara Lind]
The Court may or may not be as convinced of the urgency. It’s asked for the groups suing the government to submit briefs by June 12 — which is quicker than usual, but also brings us even closer to the end of the term. [Neal Katyal via Twitter]
There are probably four votes on the Court to hear the case in fall. But the stays — both of which the government would need approved to enforce the ban over the summer — need five votes, and it’s not at all clear the government has that many. [NYT / Adam Liptak]
To be clear: Even though the administration has lost consistently in the lower courts, there may be five votes in the Supreme Court (the four conservatives + Justice Anthony Kennedy, presumably) willing to agree that the travel ban is constitutional. [USA Today / Alan Gomez]
But they may not be willing to make that decision so quickly — especially when that means staying a decision that’s still pending in a lower court, which is pretty dang untraditional. [Vox / Dara Lind]
More likely, the Trump administration’s aggressive requests for a stay will simply persuade the Court to agree to hear both cases — both the one the Trump administration lost last week and the one it’s still waiting to hear back from the Ninth Circuit on — on an “expedited” schedule in September. [Josh Blackman]
That option would have the bonus of rescuing the Trump administration from a possible Legal Nightmare Scenario™: The Ninth Circuit could make a ruling that forced the Trump administration to carry out the “review” that was supposed to happen during the travel ban over the summer — keeping the ban on hold, but preventing the administration from being able to go to the Supreme Court to reanimate it. [Take Care Blog / Amir Ali]
There is, however, another Legal Nightmare Scenario™ for the administration, raised by law professor Marty Lederman on Friday. It’s possible to interpret the wording of the current travel ban to say that the ban expires in mid-June whether or not it ever went into effect. The Supreme Court might not agree with this interpretation — but if it did, it could decide that the ban is simply dead by expiration. [Lawfare / Marty Lederman]
www.fotavgeia.blogspot.com
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