The Supreme Court says it will decide the fate of President Trump’s travel ban, agreeing to hear arguments over immigration cases that were filed in federal courts in Hawaii and Maryland.
“We grant the petitions for certiorari and grant the stay applications in part,” the court said Monday. The court’s clerk will set a date for the cases — which will be consolidated — to be heard in the session that begins in October.
“Both petitions for certiorari and both stay applications are accordingly ripe for consideration,” the court said on Monday.
The case centers on the president’s revised executive order — which blocks new visas for travelers from six majority-Muslim countries for 90 days, and suspends the U.S. refugee program for 120 days.
That order was put on hold by lower court judges in Hawaii and Maryland hours before it was set to take effect in March. Two federal appeals courts left those nationwide injunctions in place, setting up one final appeal for the Trump administration.
The White House argues that this executive order, like the previous version the president signed in January, is necessary to protect national security. The initial version caused chaos at airports across the country until it was blocked by a federal judge in Washington state, prompting the administration to craft a revised version that omitted references to religion and specifically exempted green card holders. But that order, too, was challenged by lawsuits, and it was blocked by lower courts before it ever went into effect.
As part of its instructions to the parties in the case, the high court said today that they should answer the question of “Whether the challenges … became moot on June 14, 2017” — referring to the order’s original timeframe of 90 days.
Both of the federal appeals courts that have considered the revised executive order have ruled against the administration — but for different reasons.
The appellate judges weren’t directly ruling on the merits of the travel ban itself. But in order to decide if the lower court injunctions were appropriate, they had to weigh the probable impact of the order and the likelihood that the legal challenges would succeed.
The 4th U.S. Circuit Court of Appeals looked extensively at whether the travel ban violated the Constitution by discriminating on the basis of religion. The challengers in that case, led by the nonprofit International Refugee Assistance Project, argued that the travel ban is a thinly veiled attempt to block Muslims from entering the country, something Trump and his advisers talked about during and after the presidential campaign.
Lawyers for the Department of Justice countered that courts should look only at the language of the executive order itself, which does not mention religion explicitly. But that argument did not prevail. Writing for the 10-3 majority, Chief Judge Roger Gregory said the executive order “speaks with vague words of national security but in context drips with religious intolerance.”
The ruling from the 9th U.S. Circuit Court of Appeals focused on federal law. The court found that the president likely exceeded his statutory authority under the Immigration and Nationality Act.
“The order does not offer a sufficient justification to suspend the entry of more than 180 million people on the basis of nationality,” the 9th Circuit judges wrote. “National security is not a ‘talismanic incantation’ that, once invoked, can support any and all exercise of executive power.”
The Trump administration moved quickly to appeal both rulings to the Supreme Court.
“The Executive Branch is entrusted with the responsibility to keep the country safe under Article II of the Constitution,” U.S. Attorney General Jeff Sessions said in a statement after the 9th Circuit ruling. Sessions called the threat of terrorism “immediate and real,” and said the lower court’s injunction “has a chilling effect on security operations overall.”