DOJ seeks to argue 9th Circuit travel ban decision

The Trump administration wants a chance to argue the 9th Circuit Court of Appeals’ decision Monday not to reinstate the president’s travel ban.

In a letter to the Supreme Court Tuesday, the Department of Justice asked if it could supplement its court briefings given the most recent ruling.

The administration had already asked the high court to halt the 4th Circuit Court and Hawaii District Court rulings blocking the ban and hear its appeal of those rulings.

But now the administration wants a chance to argue the 9th Circuit’s decision as well, since it relied on immigration laws instead of the Constitution in affirming the Hawaii district court’s decision. 

Given the limited days left in the Supreme Court term, the administration is asking the court to treat its request for a stay of the lower court rulings like a request for the court to hear its appeal of both the 4th Circuit and 9th Circuit rulings.

If the court grants review of 4th Circuit decision, the Justice Department said it should also grant review of the 9th Circuit decision and consolidate the cases for arguments.

In the letter, the Justice Department proposes a new briefing schedule that would have all the required court filings completed in time for the court to decide at its last scheduled conference on June 22 whether to hear the government’s appeal.

But Hawaii’s attorney, Neal Katyal, pushed back against that timeline and the Justice Department’s request to file two additional briefs in connection with its stay application. 

“As the Clerk’s Office is aware, I am in Utah with very little internet access and it will be extremely difficult to coordinate with my clients and my team until I return to D.C on Sunday, June 18,” he said in a letter to the court Tuesday. 

“For that reason, a Monday filing deadline would be extremely difficult for respondents to meet, as we have explained to the Government.” 

In a unanimous decision Monday, the 9th Circuit said Trump’s March 6 order, which banned nationals from six majority-Muslim countries from entering the U.S., did not offer a sufficient justification to suspend the entry of more than 180 million people on the basis of nationality.

Though the Immigration and Nationality Act gives the president broad powers to control the entry of foreigners, the judges said the president’s authority is subject to certain statutory and constitutional restraints.

The 4th Circuit, however, said the order discriminates against Muslims in violation of the Establishment Clause of the First Amendment, which prohibits the government from establishing any religious orthodoxy, or favoring or disfavoring one religion over another.

In a statement following the ruling, Attorney General Jeff Sessions said the administration disagrees with the 9th Circuit’s decision to block the president’s lawful authority to keep the nation safe.

“Recent attacks confirm that the threat to our nation is immediate and real. Certain countries shelter or sponsor terrorist groups like ISIS and al Qaeda, and we may be unable to obtain any reliable background information on individuals from these war-torn, failed states,” he said. 

“We must not place our nation at risk until we have the ability accurately and responsibly to vet those seeking entry here.”