The Trump Administration, insisting that the presidential order limiting entry to the U.S. of foreign nationals from Mideast nations “is not a so-called ‘Muslim ban,’ ” urged the Supreme Court on Thursday evening to throw out without a decision two major cases pursued by challengers to the restrictions.
The 84-page brief was the first document to be filed with the Justices on the major issue the Justices agreed in late June to review at their next term — the legality of President Trump’s March 6 executive order suspending entry by foreign nationals and refugees. The Justices have scheduled a hearing on that issue on October 10. The challengers will file their own brief on the legality issue next month.
That review is separate from a continuing controversy about how, in the meantime, the Trump Administration can enforce the provisions of the executive order. The Supreme Court has twice issued temporary orders allowing enforcement of some of the order. That part of the controversy is now awaiting a decision in a federal appeals court in Seattle, and seems likely to return to the Justices in advance of the opening of their new term.
The government’s new brief contended that no one among the challengers can show that they are now being harmed or will suffer any harm from the March order by Trump, so lower court decisions against the order should be set aside as lacking any legal basis. Two federal appeals courts have ruled that the executive order either was an unconstitutional form of religious discrimination against Muslims, or went beyond presidential authority under federal immigration laws governing the power to exclude foreign nationals from this country.
In trying to counter the claim that the real purpose of the Trump action was to keep Muslims out of the U.S. because of their faith, the brief argued that it is a serious affront to the presidency to second-guess the motives of a Chief Executive by accusing him of bias against “one of the world’s major religions.”
The federal appeals court’s ruling against the executive order as a “Muslim ban,” the new filing asserted, runs directly counter to President Trump’s speech in Saudi Arabia in May calling for “tolerance and respect” for all faiths, and imputes a biased motive to a presidential order that is “neutral on its face” as to religion and is aimed only at protecting national security.
The appeals court’s decision “plainly carries the potential to…