WASHINGTON — The Supreme Court has almost certainly decided what to do about President Donald Trump’s travel ban affecting citizens of six mostly Muslim countries.
The U.S. is waiting for the court to make its decision public about the biggest legal controversy in the first five months of Trump’s presidency. The issue has been tied up in the courts since Trump’s original order in January sparked widespread protests just days after he took office.
The justices met Thursday morning for their last regularly scheduled private conference in June and probably took a vote about whether to let the Trump administration immediately enforce the ban and hear the administration’s appeal of lower court rulings blocking the ban.
The court’s decision could come any time and is expected no later than late next week, after which the justices will scatter for speeches, teaching gigs and vacations.
Exactly when could depend on whether there are justices who disagree with the outcome and want to say so publicly. It might take time for such an opinion to be written – and perhaps responded to by someone in the majority.
It takes five votes to reinstate the ban, but only four to set the case for argument. Justice Neil Gorsuch, Trump’s nominee who was confirmed in April, is taking part in the highest-profile issue yet in his three months on the court.
The case is at the Supreme Court because two federal appellate courts have ruled against the Trump travel policy, which would impose a 90-day pause in travel from citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen.
The 4th U.S. Circuit Court of Appeals in Richmond, Virginia, said the ban was “rooted in religious animus” toward Muslims and pointed to Trump’s campaign promise to impose a ban on Muslims entering the country as well as tweets and remarks he has made since becoming president.
The San Francisco-based 9th U.S. Circuit Court of Appeals said the travel policy does not comply with federal immigration law, including a prohibition on nationality-based discrimination. That court also put a hold on separate aspects of the policy that would keep all refugees out of the U.S. for 120 days and cut by more than half, from 110,000 to 50,000, the cap on refugees in the current government spending year that ends Sept. 30.
Trump’s first executive order on travel applied to travellers from the six countries as well as Iraq, and took effect immediately, causing chaos and panic at airports over the last weekend in January as the Homeland Security Department scrambled to figure out who the order covered and how it was to be implemented.
A federal judge blocked it eight days later, an order that was upheld by a 9th circuit panel. Rather than pursue an appeal, the administration said it would revise the policy.
In March, Trump issued a narrower order, but it too has been blocked.
The justices have a range of options. They could immediately allow the administration to stop travel from the six countries and hear arguments on the administration’s broader appeal in October. That’s the path the administration has urged.
But the 90-day ban will have run its course by then, and there might be little left for the court to rule on.
The government has said the ban was needed to allow for an internal review of the screening procedures for visa applicants from the six countries.
That too should be complete before the Supreme Court reconvenes for its new term on Oct. 2.
The administration also could issue a new ban that includes more countries or is permanent, or both. That might make the current case go away and also could give rise to new legal challenges.
The high court also might keep the ban on hold, but set the case for argument in October. This course might be palatable both to justices who object to the ban and those who don’t like the breadth of the lower court rulings against the president.
But it also could mean that a new policy is in effect before the court ever hears the case.
The justices also could keep the ban from being reinstated and, at the same time, decline to review the lower court rulings. That outcome would essentially end the case.
One barrier to that option could be that the court usually likes to have the last word when a lower court strikes down a federal law or presidential action.