President Donald Trump’ travel ban is now in the Supreme Court, and whether it is reinstated could fall on swing votes from two conservative justices.
While Supreme Court Justice Anthony Kennedy is largely conservative, he has been known to vote along with the four liberal on the nine-justice panel. Some say he proved he is more of a moderate in the 2015 case of Fauzia Din, a naturalized Afghan, who sued all the way to the Supreme Court for an explanation why her husband was denied entry into the United States. The panel voted 5-4 against Din. Kennedy filed a concurring opinion.
Then there’s Justice Neil Gorsuch, who joined the court in April. Some expect him to vote along conservative lines, but Gorsuch said he would not “put a rubber stamp” on anything concerning the president, namely Trump’s scourge of his critics regarding the travel ban.
The Department of Justice has asked the high court to allow the ban to remain in place after a lower court blocked it. Trump used his power of executive order earlier this year to institute a 90-moratorium on travelers from Iran, Lybia, Somalia, Sudan, Syria, and Yemen.
The president said the ban was vital to protect the United States from future terrorist attacks. Those against the ban claim it is a violation of human rights and discriminates against Muslims.
According to reports, however, a ban of some iteration could eventually take effect. The current argument now is when it will begin.
Trump’s initial 90-day term will have expired by the time the Supreme Court decides the case, Reuters reports.
There is also a conservative majority in Supreme Court, something Taht could fare better for the president than the more liberal-leaning lower court that put a stay on his order.
As it stands, the president needs five votes for the emergency stay on the ban to be lifted.
Some say the court’s block impinged the president’s ability to do his job, “preventing the executive from his national-security judgement.” The federal appeals court did not see it that way. A panel in February unanimously rejected President Trump’s request to lift the ban.
The three-judge court ruled the ban did not interfere with Trump’s duties as president and that it did not advance national security, namely because no evidence exists that anyone from the six nations has committed acts of terror in the United States.
Before the ruling, Trump said the courts have no authority to review a sitting president’s assessment of national security. The court disagreed.
“The federal judiciary retains the authority to adjudicate constitutional challenges to executive action,” part of the February decision said.
On Friday, June 2, justices asked challengers to the president’s travel ban to file arguments by June 12. So far, opponents, including state governments and a civil rights organizations, have joined the case, echoing the lower appeals court that urgent action to protect America against Muslim nations is not necessary. But, the argument is not cut and dried, rights groups say.
“This is different from the kind of case you would expect the Supreme Court to grant the extraordinary relief of a stay, because of the lack of any demonstrable urgency or harm and because the law and the facts are on our side,” said Omar Jadwat, an attorney for the American Civil Liberties Union (ACLU).
The Department of Justice has a different opinion on the matter’s complexity. Spokesmen say the president was acting well within the scope of his duty as commander-in-chief. The department said Trump, like presidents before him, is not required to admit into the country anyone from nations known to sponsor or harbor terrorism until travelers are vetted.
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