The first federal appeals court’s review of President Trump’s revised order limiting immigration from six Mideast nations will go forward on an expedited schedule, the U.S. Court of Appeals for the Fourth Circuit decided Thursday.
The appeals court gave itself the option of ruling even more swiftly on the Trump Administration’s plea to begin enforcing the policy that was announced on March 6 but is now blocked by a federal trial judge in Maryland. The policy would suspend for 90 days any entry into the U.S. of foreign nationals from the listed nations.
Federal government lawyers will get the review schedule under way on Friday when they file two separate documents: a formal request to put on hold the Maryland judge’s bar to enforcement, and a brief laying out the Administration’s full defense of the legality of the immigration limits.
Earlier, the government lawyers had wanted the Circuit Court to consider and rule simultaneously on both of those requests, arguing that doing so would give that court a chance to more fully explore the policy.
In its scheduling order on Thursday, the Circuit Court did not explicitly reject the idea of simultaneous consideration, but it did issue separate schedules for the filing of briefs on each of the two filings. It told the challengers to file their response to the government postponement request by March 31, with a government reply due by April 5.
April 5 was the date by which the government had wanted all of the written arguments to be filed, but the challengers to the policy objected to that.
The Circuit Court gave the challengers until April 14 to file their brief answering the government’s brief defending the Trump policy on the merits. It set an April 21 deadline for the government’s reply brief.
The Circuit Court set May 8 as the date for a hearing. The order did not say whether the court might rule on the government’s plea to lift the Maryland judge’s enforcement bar while the appeal proceeds. With all of the briefs on that part of the case due to be filed more than a month before the hearing date, the court will have the option of ruling on that without waiting for the hearing.
If the Circuit Court were to rule separately on the timing of the enforcement question without waiting for the hearing in May, the Administration would have the option of appealing to the Supreme Court right away on that aspect of the case. The Maryland jurist. U.S. District Judge Theodore D. Chuang, issued a temporary nationwide ban on enforcement of the suspension of immigration from the six Mideast nations.
In Hawaii, U.S. District Judge Derrick Watson has issued a nationwide order against both key aspects of the revised Trump order – the planned 90-day suspension of immigrants from the listed nations, as well as a plan for a 120-day suspension of entry into the U.S. of refugees from any nation.
Government lawyers have not yet signaled that they will appeal the Hawaii judge’s order to the U.S. Court of Appeals for the Ninth Circuit – the appeals court that refused last month to let the Administration enforce any provisions of the first version of the Administration’s immigration restrictions.
However, government lawyers mentioned the Hawaii case in one of their filings this week in the Maryland case, and said they would appeal the Hawaii case, too, if the Honolulu judge takes the step of turning his temporary bar on enforcement into a sturdier prohibition. That could come at any time.
Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.
