No one should be surprised that the Trump administration is formally asking the Supreme Court to overrule two sets of injunctions from federal judges, in Hawaii and Maryland, preventing it from implementing its “travel ban.” The ban is currently stuck in legal limbo.
The underlying issues are reasonably clear: Did lower courts err in looking at preelection statements by the president and his advisers and deducing that the “travel ban” was in fact a poorly sanitized and patently unconstitutional “Muslim ban?” And in general do the president’s statutory and constitutional powers to modify immigration policy in the pursuit of national-security priorities override the negative effects of this sort of action on various parties to the litigation?
Some observers (including members of the Trump administration) suspect that SCOTUS, particularly with Neil Gorsuch reestablishing a conservative majority on the Court, would answer both questions affirmatively — thus allowing the ban to go into effect. But the case is very tricky from a procedural standpoint.
Here are four courses of action the Court might chose.
1. Do nothing. The court decline to get involved at all. But that should be considered highly unlikely in a case this high-profile and heated.
2. Agree to hear the case, but without providing the Trump administration any relief from lower-court rulings. This is the easiest and most likely course of action for the Court. It would require only that four justices agree to review the case — a threshold that shouldn’t be hard to reach. Since the Court’s current term is nearly over, the justices would probably not hold a hearing on the case till fall, with a decision coming at some point in 2018.
3. Agree to hear the case and in the meantime give the administration total relief from the lower-court injunctions. This is a bit of a long shot, but far from impossible. It would require five justices agreeing to allow the rule to go into effect while the case is in process. They would do so on the basis that they expected the administration to prevail in the end. But action that bold in a case this controversial would be unusual.
4. Provide limited injunctive relief and send the administration back to the drawing board to create a long-term plan. It is helpful to remember that the whole “travel ban” was originally intended as a temporary measure while the government explored ways to permanently tighten vetting procedures for visa applicants who might present national security risks. The Hawaii injunction prevented the administration from proceeding with that long-term project. The Supreme Court could choose to put aside that part of the Hawaii injunction (which is still pending appeal in the Ninth Circuit Court of Appeals), which would allow the government to go ahead and develop its permanent policies, though without any temporary travel ban. That could have the functional effect of making the current legal controversy moot. Opponents of the administration’s whole approach in this area would undoubtedly head to court to oppose any proposed permanent vetting procedures — but that would be another ball of wax from a legal point of view.
Whatever path the justices choose, the administration’s plea for quick action probably means we will know something within weeks if not days.