Court battles over President Donald Trump's revised travel ban continue to be waged across the United States, and two cases have made it to the appeals courts — one in the 9th Circuit and another in the 4th Circuit. And now the fight is on the Supreme Court's doorstep.
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On Monday the 9th Circuit Court of Appeals ruled to largely uphold a Hawaii court's nationwide preliminary injunction that blocked the revised travel ban's 90-day halt on nationals from the six designated Muslim-majority nations and a 120-day suspension of the refugee program. But the 9th Circuit vacated portions of the injunction that prevented the government from conducting internal reviews of its vetting procedures.
The court affirmed the injunction on statutory grounds — that Trump's revised ban exceeded the scope of his authority granted to him by Congress — and did not consider the constitutional claims. Earlier in the month, the government asked the Supreme Court to stay the Hawaii injunction.
In a separate case, the 4th Circuit Court of Appeals ruled in May to affirm a Maryland court's nationwide injunction of the travel ban's 90-day stoppage on nationals from the six countries. Earlier this month, the government asked the Supreme Court to stay the 4th Circuit ruling — which would reinstate the travel ban until the Supreme Court can hear the case — and filed a petition for certiorari, or a request for the court to review a case.
On Monday the plaintiffs in the 4th Circuit case filed motions opposing the government's requests for the Supreme Court to take the case and issue a stay.
The Supreme Court could rule on stays of the 4th and 9th Circuit rulings at any time, and experts predict that such decisions could come this week or next. If five Supreme Court justices vote for stays, the travel ban could be immediately reinstated until the Supreme Court hears the case on the merits, mostly likely in October, when the justices are back in session.
A key issue is when the 90-day ban on travel from the six nations and the 120-day ban on refugees starts and ends. The travel ban challengers claim the 90 days end this Wednesday, which is 90 days from the revised travel ban's stated effective date of March 16. That interpretation would render the 4th Circuit's case moot this week and the 9th Circuit's case moot in another month when 120 days runs out. The government argues that the Hawaii judge's injunction in March stopped the clock and that the periods would not begin until the revised travel ban goes into effect.
A vote of at least four Supreme Court justices is needed for the high court to grant cert and ultimately rule on the ban's constitutionality. This decision could take longer than the stay and is expected within a few weeks. If the Supreme Court agrees to hear the case, arguments will likely be no sooner than October, when the court's next session begins.
If a stay is granted and the travel ban goes into effect this summer, the 90- and 120-day periods could expire or come close to expiring by October, which would also make the case moot before the Supreme Court can rule on the ban's constitutionality.
However, there's also the possibility that the Supreme Court could expedite the whole process — granting certiorari this week, hearing arguments in a week or two and deciding the case before the end of the term, although experts say that is an unlikely scenario.
One interim step the government could take in the 9th Circuit is ask to for an en banc review — by all eligible 9th Circuit judges — of Monday's ruling, but most likely, government lawyers will try to go straight to the Supreme Court, where the 4th Circuit case has already landed.