The move sets the stage for a constitutional showdown over the president’s authority to make national security judgments.
The move sets the stage for a constitutional showdown over the president’s authority to make national security judgments in the name of protecting Americans from terrorism.
Last week, a federal appeals court in Richmond, Virginia, said President Donald Trump’s travel ban was a product of religious animus and intolerance, and so violated the First Amendment. Trump’s national security justifications for the ban, that court said, were a pretext for the religious discrimination suggested by his campaign rhetoric, including his pledge to ban Muslim immigrants from entering the country.
The 4th U.S. Circuit Court of Appeals split along ideological lines in its 10-to-3 decision, with its three Republican appointees in dissent. Shortly after the decision was issued, Attorney General Jeff Sessions vowed to appeal to the Supreme Court.
In its brief filed late Thursday asking the Supreme Court to consider the case, the Trump administration said the question for the justices was momentous.
“The stakes are indisputably high: The court of appeals concluded that the president acted in bad faith with religious animus when, after consulting with three members of his Cabinet, he placed a brief pause on entry from six countries that present heightened risks of terrorism,” the brief said.
It added that the appeals court had gone badly astray.
“The court did not dispute that the president acted at the height of his powers in instituting” the executive order’s “temporary pause on entry by nationals from certain countries that sponsor or shelter terrorism,” the brief said. The brief also said the order’s “text and operation are religion-neutral.”
The Supreme Court is back at full strength with the appointment of Justice Neil M. Gorsuch to fill the seat left vacant for more than a year after the death of Justice Antonin Scalia. The new case will be an early indication of how Gorsuch affects the balance of power on the court.
A week into his presidency, on Jan. 27, Trump issued an executive order to ban travel from Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen for 90 days. It also banned all Syrian refugees indefinitely. The order was blocked by the 9th Circuit in February.
In March, Trump issued a new, revised ban that narrowed the scope of his original order. It omitted Iraq from the countries that faced the travel scrutiny and allowed case-by-case exceptions for travelers from the others. It also removed the complete ban on Syrian refugees and deleted explicit references to religion.
Like the earlier order, the new one suspended the nation’s refugee program for 120 days and reduced the annual number of refugees to 50,000 from 110,000.
In its brief, the Trump administration urged the court to place law above politics.
“This order has been the subject of passionate political debate,” the brief said. “But whatever one’s views, the precedent set by this case for the judiciary’s proper role in reviewing the president’s national security and immigration authority will transcend this debate, this order, and this constitutional moment.
“Precisely in cases that spark such intense feelings, it is all the more critical to adhere to foundational legal rules,” the brief said. It said the lower court ruling “departs from those rules and calls into question the executive and his authority in a way that warrants this court’s review.”
Omar Jadwat, a lawyer with the American Civil Liberties Union, which represents people and groups challenging the ban, said the Supreme Court should let the appeals court decision stand.
“There is no reason to disturb the 4th Circuit’s ruling, which was supported by an overwhelming majority of the judges on the full court, is consistent with rulings from other courts across the nation and enforces a fundamental principle that protects all of us from government condemnation of our religious beliefs,” he said.