On Thursday morning, the Supreme Court’s nine Justices will meet behind closed doors to consider appeals in the Trump administration’s immigration ban case. Here is a brief rundown of what to expect before and after that meeting.
Last week, the Court asked for briefs from the Justice Department and the challengers in Trump v. Hawaii, the Ninth Circuit Appeals Court case, to be filed by 12 p.m. on Wednesday, June 21. The brief from Hawaii was due on Tuesday and the Justice Department’s brief was due on Wednesday.
The Court already has briefs on a second case from the Fourth Circuit, Trump v. International Refugee Assistance Project (IRAP). In addition, numerous amicus briefs have been filed in both cases from academics, lawyers and interest groups that support either President Trump or his opponents.
The central questions in the cases involve three issues. First, will the Supreme Court accept one or both challenges to Trump’s immigration ban executive order for full arguments in front of the Court, most likely this fall? In Thursday’s private conference, at least four of the nine Justices need to agree to accept the Hawaii case, the IRAP case, or a case that consolidates both lawsuits.
The IRAP case involves a temporary injunction on part of the Trump executive order that allows for a 90-day temporary ban on immigrants from six Middle Eastern countries arriving in the United States. The Fourth Circuit Courts found that that the refugee ban violated the Constitution’s First Amendment and its Establishment Clause on religious discrimination.
The Hawaii case is about a temporary injunction from the Ninth Circuit Courts on the Middle Eastern ban and a 120-day temporary ban on all refugees entering the United States, based on a finding that the Trump order violated existing immigration laws.
The second and third issues involve the temporary injunctions, or stays. The Justice Department wants them lifted and the bans put into effect, and for the Supreme Court to grant hearings in the cases in its next term. The challengers want the Justice Department’s requests denied.
It will take at least five Justices to agree to lift a stay in the IRAP case (just the 90-day ban on six Middle Eastern countries) or the Hawaii case (both bans). And if a Justice agrees to lift a stay, that Justice would likely believe the Justice Department would succeed in court on the merits of the case – a potentially crippling blow to the challengers.
So the key things to watch will be if the Justice Department is granted its day in the Supreme Court; if the two cases are combined into one case; if the Court will consider the First Amendment argument and the argument over the immigration laws; and if any of the stays are lifted.
The Court could take action on the two stays as soon as Wednesday afternnoon, especially with the need to act on the stays as a pressing matter. Orders out of the private conference could come as soon as late Thursday morning, if the Court decides to take the case or cases for arguments.
And there is a possibility the Court could decide to hear arguments in its current term on a greatly expedited schedule. That rarely happens, but the Court can extend its period to consider cases into July, if needed, or hold a special sitting.
All these factors combined will make Thursday’s private conference a much-anticipated event for Supreme Court watchers and one that could yield a few surprises.
Scott Bomboy is the editor in chief of the National Constitution Center.
