With a third version of the Muslim ban set to go into effect on October 18, President Donald Trump’s administration has asked the Supreme Court to vacate lower court rulings on previous versions of the ban.
“If allowed to stand, the lower courts’ decisions threaten to undermine the executive’s ability to deal with sensitive foreign policy issues in strategically important regions of the world,” Solicitor General Noel J. Francisco writes in a letter to Scott S. Harris, the clerk of the Supreme Court.
Francisco adds, “The court should not permit that unnecessary consequence, especially when the rulings below are preliminary injunctions litigated on a highly expedited basis.”
The letter celebrates supposed “time limits” on entry and refugee suspensions as features that were not part of any attempts to “evade judicial review.” They were “temporary measures to facilitate the government’s inter-agency review processes and to protect national security in the interim.”
On February 3, Judge James Robart of the Western District of Washington temporarily blocked parts of the first Muslim ban. It forced the Homeland Security Department to stop enforcing the ban, and the State Department ended its suspension of visas affected by the ban.
The Ninth Circuit Court of Appeals denied the Trump administration’s request for a stay of Robart’s temporary restraining order on February 9. Days later, Judge Leonie Brinkema of the Eastern District of Virginia issued a preliminary injunction because she believed the plaintiffs challenging it could probably prove it violated the Constitution.
Following the second version of the ban (“Muslim 2.0”), Judge Derrick Watson of the District of Hawaii enjoined enforcement of key provisions. Watson contended the administration was likely motivated by sentiments against Muslims and that Muslim Ban 2.0 still violated the Constitution. The same day, Judge Theodore Chuang of the District of Maryland ruled similarly against Muslim Ban 2.0.
The Trump administration would like all these decisions to be moot so they cannot be case law that restricts their executive action in the future.
Francisco argues “the decisions” may have “seriously problematic ‘prospective effect[s].'”
“The Ninth Circuit held that the President is generally forbidden by [statutory law] from using country-by-country security assessments to impose nation-specific restrictions on entry, which the court held would constitute “discriminat[ion],” or an unlawful ‘preference or priority,’ in the ‘issuance of an immigrant visa’ on the basis of ‘nationality,'” Francisco recalled. “The Ninth Circuit also held that Section 1182(f) requires the President to provide detailed findings sufficient to satisfy APA-style judicial review, even though the executive often must withhold this information for national security and foreign policy reasons.”
Francisco also acknowledges how the Ninth Circuit held that statutory law “prevents the President from directing that fewer refugees be admitted than the maximum number established each fiscal year in consultation with Congress.”
The Trump administration is additionally upset that a Fourth Circuit ruling “finding anti-Muslim animus” might undermine Trump’s ability to “conduct foreign policy and protect national security in a critical region of the world” (presumably the Middle East and North Africa).
“If the judgments below are not vacated, plaintiffs can be expected to attempt to rely on them in new litigation,” the administration fears.
Shayan Modarres, the legal counsel for the National Iranian American Council, which recently backed a lawsuit against Muslim Ban 3.0, said, “This is more of an indication of how uncomfortable [the administration] is in their legal and policy positions.”
This is in many ways similar to the first and second bans, “and in many ways, it’s more cruel,” because it adds North Korea and Venezuela to obscure its unconstitutionality.
The third version of the Muslim ban already faces a lawsuit. Francisco notes a lawsuit was filed in the Fourth Circuit, the same one that found the administration is likely motivated by animus toward Muslims.
The Trump administration attempts to cloak their desires in the language of separation of powers, with a plea to the judiciary to give it discretion to rule. However, what the administration really wants is for the judicial branch to erase history from the past year. They want organizations that bring challenges to their authority in the future to be constrained from invoking the record of unjust and unconstitutional conduct against Muslims seeking to enter the United States.