Trump travel ban's fate hinges on emergency US high court request

WASHINGTON-The Trump administration late Thursday asked the Supreme Court to revive its plan to temporarily ban travelers from six largely Muslim countries from entering the USA, a major legal test for one of the president's most controversial initiatives.

Government lawyers asked the justices to let the travel ban go into effect even while they challenge the lower courts' rulings.

In March, a federal district court in Hawaii issued a nationwide order blocking the president's revised travel ban, writing a "reasonable objective observer" would view the revised ban as one "issued with a goal to disfavor a particular religion, in spite of its stated, religiously neutral goal". The BBC reports that at the time the 4th circuit's injunction was upheld, the court's ruling said that the national security argument that the government was attempting to make was "a secondary justification for an executive order rooted in religious animus and meant to bar Muslims from this country".

"We have asked the Supreme Court to hear this important case and are confident that President Trump's executive order is well within his lawful authority to keep the nation safe and protect our communities from terrorism", Justice Department spokeswoman Sarah Isgur Flores said in a statement.

The first step for the court will be to ask the various challengers, including the American Civil Liberties Union and Hawaii, to file responses to the Trump administration's application. Five of the nine justices would have to vote to grant the request and lift the stay immediately, which would be without oral arguments and out of the view of the public.

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The court has a 5-4 conservative majority. Three of the court's more conservative judges, all Republican appointees, dissented.

The court first has to act on whether to grant the emergency applications, which could happen within a fortnight. The Justice Department appealed both rulings. Supreme Court precedent therefore requires lower courts to defer to the government, it added. In effect, the Justice Department suggested that the court had allowed a "passionate political debate" to contaminate its analysis, substituting "intense feelings" for a coolheaded assessment of "the judiciary's proper role in reviewing the President's national security and immigration authority".

"A lot of the executive order might have exhausted itself by then", Vladeck says.

After a series of other cases at district level, a federal appeals court last week maintained the freeze on the travel ban.

With this, the president is hoping to reverse the decisions of the lower courts.

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The 5-4 conservative majority on the high court means Trump, a Republican who took office on January 20, likely has a better chance than he has had to date in more liberal-leaning lower courts.

During the Presidential campaign, Donald Trump called for a "total and complete shutdown of Muslims entering the United States". Upon court orders to block the ban, the president modified its initial executive order and removed one country, Iraq, from its list in March.

"The Supreme Court surely will shudder at the majority's adoption of this new rule that has no limits or bounds - one that transforms the majority's criticisms of a candidate's various campaign statements into a constitutional violation" wrote Judge Paul Niemeyer.

The Supreme Court "has never invalidated religion-neutral government action based on speculation about officials' subjective motivations", the administration's filing argued. Both orders involve nationwide though temporary bans on enforcing the 90-day suspension of entry into the country of foreign nationals from six Mideast nations with Muslim majority populations.

That's because a separate court - the District of Hawaii, in the Ninth Circuit - also issued a temporary injunction against the travel ban in March (the day before the revised version of the ban was to go into effect, following previous court defeats in February).

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