The Supreme Court should drop its review of President Trump’s immigration travel ban and wipe lower court decisions against it off the books, the Justice Department said Thursday.
The request was opposed by states and immigrant rights groups that have fought various versions of the ban since January. They told the court to reschedule the case, or at least to let the earlier rulings stand.
The high court could decide within the next few days whether to declare the case moot because the Trump administration has replaced an expired ban on six majority-Muslim countries with a new one targeting eight nations. In addition, a ban on worldwide refugees will expire in three weeks.
The procedural skirmish will determine both the timetable for challenges to the immigration and refugee policies and their chances of success. For the time being, the justices have removed the cases, previously scheduled for oral argument next Tuesday, from their calendar.
The latest travel ban, issued Sept. 24 by proclamation, targets five countries included in two previous versions — Iran, Libya, Somalia, Syria and Yemen — as well as Chad, North Korea and Venezuela. Unlike the earlier bans, it treats some countries and types of travelers, such as students or tourists, differently than others.
The U.S. Court of Appeals for the 9th Circuit had ruled that Trump lacked proof the earlier ban was needed, and the 4th Circuit appeals court said it discriminated based on religion.
In its letter to the high court Thursday, the administration argued that the new ban is “based on detailed findings regarding the national security interests of the United States that were reached after a thorough, worldwide review and extensive consultation.”
If its argument prevails, challengers will have to start over or amend their earlier arguments in federal district courts, a process that could take months. That could delay any eventual Supreme Court showdown by a year or more.
Not surprisingly, the ban’s challengers argued that the case against the last version can go forward because many of the same travelers and their families are adversely affected — not just for 90 days, but indefinitely.
The American Civil Liberties Union, which brought the 4th Circuit challenge in Maryland, said charges of anti-Muslim discrimination still apply “despite some new window dressing” — a reference to the addition of North Korea and Venezuela.
The state of Hawaii, which brought the 9th Circuit challenge, warned the justices that elements of the earlier ban still could be revived, since Trump has said he wants a “much tougher version.”