The move this week is the latest development in a set of complicated legal proceedings. So, what happens now?
In the filings to the nation’s highest court, Acting Solicitor General Jeffrey B. Wall petitioned the justices to temporarily set aside preliminary injunctions entered by federal judges in Maryland and Hawaii, which barred implementation of core provisions of the policy, and to accept the case for review on the merits on an expedited schedule.
Last week, a 10-3 majority of the 4th Circuit Court of Appeals largely agreed in upholding the Maryland court’s injunction against the entry ban, citing “a direct link between the President’s numerous campaign statements promising a Muslim ban that targets territories” and “the discrete action he took only one week into office executing that exact plan.”
The executive order “speaks with vague words of national security,” wrote Chief Judge Roger Gregory, “but in context drips with religious intolerance, animus, and discrimination.”
The 4th Circuit decision “is wrong and in manifest need of this Court’s review,” Wall wrote in the administration’s application to the Supreme Court, arguing that the high court “has never invalidated religion-neutral government action based on speculation about officials’ subjective motivations drawn from campaign-trail statements by a political candidate.”
“There is no reason to disturb the Fourth 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.”
Trump administration wants Supreme Court to allow travel ban to go into effect but it needs the support of 5 justices
Along with its request to overturn the 4th Circuit decision, the administration is asking the court to set aside a Hawaii federal judge’s much broader injunction that prohibits enforcement not only of the entry ban, but also a provision that pauses the refugee assistance program. The U.S. Court of Appeals for the 9th Circuit heard oral argument last month on the administration’s appeal of the Hawaii injunction, but has not yet issued an opinion.
The Trump administration would need the votes of five of the nine Supreme Court justices to temporarily stay the lower court injunctions. If granted, a stay would allow the travel ban to go into effect, potentially immediately.
Should the Supreme Court decline to issue the temporary stay, the government is asking that the court agree to put the case on an accelerated schedule that would allow the justices to schedule arguments at the beginning of the fall term in October. Four votes are required to grant the request for the court to hear the case -- to determine if the travel ban is constitutional.
But because the executive order is temporary -- the entry ban is to last for 90 days and the refugee provisions for 120 days –- it is conceivable that the executive order could run its course and expire before the court hears the case.
The Supreme Court may well refuse to take this case, “because it’s a time-limited order,” said Anil Kalhan, law professor at Dexel University Kline School of Law. "The government has been inconsistent and unclear about its own position on whether this order expires in June.”
“There's an argument that some provisions of the order expire in mid-June,” notes Kate Shaw, ABC News’ Supreme Court contributor. “So if the Court doesn't issue a stay, the case could be moot in less than two weeks. If it does issue a stay, the 90-day clock would run over the summer, so it could be moot by the time the Court would hear arguments in October. So if the Administration doesn't take some step to extend the order, the Justices could simply conclude that there's no live issue to review.”
Lee Gelernt, an attorney for the American Civil Liberties Union, told ABC News today that the administration has had ample opportunity to seek high court review over the last several months, and that the delay cuts against the government’s case for an exigent treatment of the case.
The government “has not moved with any urgency at any point,” Gelernt said. “We think an emergency stay is unwarranted.”