WASHINGTON – The Trump administration should feel good about the travel ban’s chances before the Supreme Court in October, an attorney representing civil rights groups challenging the ban said today.
Pratik Shah, a partner at Akin Gump, said at the Heritage Foundation that the Supreme Court’s decision to partially stay multiple injunctions against the travel ban bodes well for the ban. One of the key elements of a stay, he noted, is the likelihood of success on the merits.
Furthermore, the Supreme Court may not even hear arguments on the merits of the case, given that key aspects of the travel ban are set to expire this month. Oral arguments are scheduled for early October.
Trump during his run for the White House pushed for banning all Muslim entry into the U.S. Shortly after taking office, he issued an executive order temporarily banning travel from seven Muslim-majority countries: Iraq, Iran, Syria, Yemen, Libya, Sudan and Somalia.
Chaos at American airports and lawsuits ensued, and federal courts put the travel ban on hold. Trump later signed an altered executive order in March, removing Iraq from the list of banned countries, among other changes. Though federal judges in Maryland and Hawaii later upheld the previous hold, the Supreme Court in June allowed certain parts of the ban to take effect.
“As of June, I would say, it’s a pretty big win for the Trump administration to get injunctions by virtually every lower court and then affirmed by the two courts of appeals that had heard the case, to get those essentially overturned in part, or stayed in part, and allow the travel ban to go into effect,” Shah said.
The ban places a 90-day ban on visa seekers from those six countries, while the Department of Homeland Security reassesses American travel procedures. The original purpose of the ban was to allow the federal government to improve its vetting processes. That 90-day clock is set to expire on Sep. 24.
If the administration lets the ban expire, the case could be rendered moot, but there is a possibility that the president attempts to renew the ban to offer more time to reassess vetting procedures. If the ban remains in effect, the court will have to decide whether the challengers have standing to bring the case before the court.
“I don’t think the court will be disappointed at all if the case goes away as moot, and they don’t actually have to issue a decision on the merit,” Shah said. “I’ll leave it there with the caveat that this is a very fluid situation and a piece of litigation that is extremely hard to predict where it will end up.”
Challengers have argued that the travel ban is a pretext for racial and religious discrimination, citing Trump’s rhetoric before and after his campaign as evidence. The federal government has argued that the order itself is legitimate, as the executive has the right to invoke the ban, and therefore the campaign rhetoric is irrelevant.
Heritage held the discussion to preview the Supreme Court’s 2017 term, which begins in two weeks. Another major case before the high court is Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case that has pitted religious liberty against gay rights. The court in June announced that it would consider the case of Colorado baker Jack Phillips, a Christian who refused to bake a cake for a same-sex wedding due to his religious beliefs.
Shah, who has filed an amicus brief on behalf of Colorado, said that all eyes will be on Justice Anthony Kennedy, who could likely be the deciding vote in the matter. It will be important to see how Kennedy frames the issue – as an anti-discrimination argument or a free speech-religious liberty decision. Challengers have argued that commercial businesses cannot deny a customer based on sexual preference, but the other side has argued that the government cannot force a baker, or artist in this case, to engage in speech that he doesn’t agree with.
“This is all eyes on Justice Kennedy and what framing of the case he chooses to view this as,” Shah said.