In the wake of the May 25, 2017, decision of the Fourth Circuit US Court of Appeals to uphold a lower court’s injunction barring implementation of Executive Order 13780, commonly referred to as the “Travel Ban,” the Trump administration is seeking Supreme Court review and has asked the Court to allow the travel ban to proceed while it considers the case. (See our Legal Update on the appellate ruling). On June 1, 2017, the administration filed a petition for writ of certiorari and a request for stay of the Fourth Circuit decision.

“This Court has never invalidated religion-neutral government action based on speculation about officials’ subjective motivations drawn from campaign-trail statements by a political candidate,” writes the acting solicitor general. The administration’s petition stresses the importance of Supreme Court review, stating, “[t]his Order has been the subject of passionate political debate. But whatever one’s views, the precedent set by this case for the judiciary’s proper role in reviewing the President’s national-security and immigration authority will transcend this debate, this Order, and this constitutional moment.”

The Justice Department also asked the Court to stay a temporary restraining order issued by the District Court in Hawaii that enjoined the six-country travel ban as well as the section of the executive order that would temporarily ban the admission of refugees. A three-judge panel of the Ninth Circuit Court of Appeals heard oral argument on the administration’s appeal from the Hawaii order on May 15, 2017, and is expected to rule soon.

According to the Supreme Court’s rules, at least four of the nine justices must vote to hear the administration’s appeal. A stay of the lower court decision(s), which would allow the ban to proceed, requires approval by at least five justices.