Posted by Ryan Suto on June 02, 2017 in Blog

Last night the Government motioned to stay the injunctions placed on the President’s second Travel Ban executive order which halts entry to the United States by citizens of five Arab countries and Iran. The injunctions, one by the Hawaii district court and the latest on May 25th by the Fourth Circuit Court of Appeals, have continued to block the President’s attempt at singling out Muslims in the name of national security, often citing anti-Muslim rhetoric on the part of the Administration. The Government also filed an appeal of the Fourth Circuit’s decision to the Supreme Court.

In the filings the Government argues that the lower courts were flawed in citing campaign rhetoric, asserting that the Executive Order is “religion-neutral” and that the President has unilateral authority to limit entry into the country based on national security determinations.

The Government’s own procedural pace in seeking stays to the injunctions, while not seeking expedited arguments by the Supreme Court, shows little urgency, which is the exact basis for the promulgation of an Executive Order to immediately halt entry from the ascribed countries, as Constitutional expertSteve Vladeck has noted. If the Court hears the case, arguments will likely not be made for another four months.

The Court will likely decide the case based on the “likelihood that irreparable harm will result from the denial of stay.” Given that no person on American soil has been killed in a terrorist attack perpetrated by a national of the targeted countries and no attack has occurred in the United States by those coming from the six countries in the over four months since the Executive Order has been halted, the Government’s failure to convince the courts may continue.