Trump's Travel Ban: What to Expect When the Supreme Court Acts

  • Justices being asked to let ban take effect during appeals
  • Dispute tests high court’s approach to polarizing president
Photographer: Win McNamee/Getty Images

The U.S. Supreme Court is poised to act on President Donald Trump’s bid to reinstate his travel ban, which would suspend entry from six mostly Muslim countries for 90 days.

Two federal appeals courts have blocked the ban. The legal dispute is pulling Chief Justice John Roberts and his colleagues into a divisive fight that will test the court’s approach toward a polarizing president and his assertions of sweeping authority over the nation’s borders.

Here are some key questions and answers about the legal dispute and the decisions the Supreme Court will make in the coming days:

What is the court being asked to do?

Two main things. The Trump administration wants the court to hear its appeals, with arguments at the beginning of the nine-month term that starts in October. The president is also seeking orders letting the travel ban take effect in the meantime. Those orders would stay the lower court rulings that are now blocking the ban.

Which request is the more important one?

Probably Trump’s bid for an interim order. In fact, that could effectively resolve the case. If the court grants that request, the ban will take effect almost immediately and probably expire before the court can hear arguments and issue a ruling.

If the court refuses to let the ban take effect immediately but nonetheless agrees to hear the appeal, the situation could be complicated. That’s in part because an appeals court just cleared the way for the administration to review the government’s vetting procedures. Because the travel ban was originally designed to operate while that review was going on, the administration could be hard-pressed to explain the ban’s purpose once the review is completed.

In addition, Trump could preempt the Supreme Court fight by issuing a permanent travel ban -- perhaps even adding new countries -- after the review is completed. That would likely start a whole new round of litigation.

When will the court act?

The justices could act at any time, though probably not before they meet privately on Thursday to discuss pending matters. The court is scheduled to end its nine-month term sometime next week, and the justices will almost certainly act on the travel ban before dispersing for the summer.

Will we learn which justices vote which way?

Maybe. The votes will be taken privately, and any dissenters will get to decide whether to make their positions public. If the court votes 5-4 on the stay requests, and all four dissenters go public, we will know exactly who was on what side. But if only two justices dissent publicly, we won’t know whether others dissented privately.

One other twist: The request for a hearing -- known to lawyers as a petition for certiorari -- requires only four votes to be granted. Justices almost never dissent from a grant of certiorari, but they occasionally issue public dissents from a denial of certiorari.

What are the main legal issues?

There are two main arguments for invalidating the travel ban, and each won over a federal appeals court. One court said the ban violates the Constitution because it was "steeped in animus" toward Muslims. The court pointed to Trump’s campaign call for a Muslim ban, as well as statements and tweets from Trump since the Jan. 20 inauguration.

The other appeals court said Trump exceeded his power under the federal immigration laws. The panel said Trump didn’t issue the required finding that allowing entry would be detrimental to U.S. interests.

Will the court explain its decisions?

It depends. The large majority of the time, the court gives no explanation when it decides whether to hear an appeal. And frequently the court says nothing when acting on a stay application.

Undoubtedly, there are sharp disagreements among the justices about the underlying legal issues with the travel ban. The question is whether the justices will air those disagreements, or swallow them for now and so they can present a unified front. There’s no way of knowing.

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