Last week, the U.S. Department of Justice appealed the Fourth Circuit's injunction against President Trump's Executive Order on immigration to the Supreme Court, asking the Court to reinstate the travel ban on immigrants from six Muslim-majority countries. And the president himself has of course taken his thoughts on the case to Twitter.
So what will be the government's argument in defending the travel ban? What can the Supreme Court do? And did Trump just sabotage the appeal before it even got started?
At present, two versions of Trump travel bans have been blocked by two different Circuit Courts of Appeal. Both of those (and the lower courts that initially issued injunctions against enforcement of the orders) have looked beyond the plain text of the executive orders and considered statements from the president and his administration as evidence of "animus" and religious bias behind the travel bans. Therefore, the courts found, the orders violate the First Amendment's ban on religious discrimination, and specifically regarding Trump's latest version, the Fourth Circuit said the order "speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination."
One of the central arguments in the DOJ's appeal to the Supreme Court is that this investigation went too far. The government petition noted that the Fourth Circuit held "that statements by the President -- nearly all before assuming office, while still a private citizen and political candidate -- and informal remarks of his aides imply that the entry suspension is intended to target Muslims."
The government argues the Court "has never invalidated religion-neutral government action based on speculation about officials' subjective motivations drawn from campaign-trail statements by a political candidate," and that such an analysis is inappropriate when reviewing executive orders, especially those pertaining to immigration and national security.
Whether those statements can or cannot be considered when determining the constitutionality of the travel ban will be vital: judges and courts that have ruled against the executive order have cited the campaign's continued targeting of Muslim's in speeches and campaign materials, targeting that allegedly continued after the election.
In addition to disregarding pre-election comments and "informal remarks," the DOJ may also want the Court to ignore post-election tweets from the president himself. Earlier today, Trump fired off a mini "tweetstorm" regarding the appeal, and it may not have helped his case:
People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!-- Donald J. Trump (@realDonaldTrump) June 5, 2017
The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.-- Donald J. Trump (@realDonaldTrump) June 5, 2017
The Justice Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court - & seek much tougher version!-- Donald J. Trump (@realDonaldTrump) June 5, 2017
In any event we are EXTREME VETTING people coming into the U.S. in order to help keep our country safe. The courts are slow and political!-- Donald J. Trump (@realDonaldTrump) June 5, 2017
Starting with an attack on the court's authority is probably not the best gambit, and doubling down on the "travel ban" moniker may only echo the "Muslim ban" rhetoric on which he ran for president. And it's odd legal advice he's giving to his own Justice Department, saying they "should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.," since it was his administration, presumably, that decided to rewrite the order instead of appealing the first time around. After all, Trump's signature is on the second travel ban.
And by suggesting that the DOJ "should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court - & seek much tougher version," Trump seems to be undermining his own lawyers' legal strategy. "I think he is kneecapping his lawyers in the Department of Justice," Austin Evers, a former top State Department lawyer told the Washington Post.
Saying he wishes the Court were considering his initial travel ban undercuts the need to review the new one, and hearkens to an also-blocked order that, arguably, employed more anti-Muslim language. Not only is the government arguing that the Supreme Court should ignore Trump's pre-election comments -- they may want the justices to ignore his post-election tweets as well.
Chances in Court
So what can the Supreme Court actually do in this case? Along with the petition for review of the Fourth Circuit's decision, the DOJ is asking the Court to stay the two orders blocking the travel ban from being enforced. Because the travel ban was temporary -- for 90 days while the government could review its vetting procedures -- it's possible that the Court could stay the orders, which would start the 90-day clock, and then not get around to hearing the underlying arguments about religious discrimination until after that time, which would render the entire question moot by then.
Or, as the New York Times points out, the justices could expedite the case schedule and hear arguments before they leave for their summer break. Otherwise, the case may not be heard and decided until the fall. And with multiple courts blocking the travel ban, choosing which to review could impact the case schedule as well.
Until the Supreme Court speaks in some capacity, the injunctions against enforcement of Trump's travel ban will remain in effect. And the president will presumably keep tweeting.