Kevin Daley, DCNF
The Department of Justice will bring its defense of President Donald Trump’s executive order on refugees and migrants to the Supreme Court, after the 4th U.S. Circuit Court of Appeals upheld a ruling barring the order’s enforcement.
“This Department of Justice will continue to vigorously defend the power and duty of the Executive Branch to protect the people of this country from danger, and will seek review of this case in the United States Supreme Court,” Sessions said in a statement shortly after the ruling Thursday.
There are several paths by which the ruling could reach the high court. The Department demurred when TheDCNF asked how it planned to proceed.
As a general matter, a case reaches the Supreme Court by the certiorari or “cert” process. Each year, the Court receives approximately 8,000 cert petitions. A cert petition is a request, usually from the losing party in a lawsuit or criminal trial, for the high court to take their case. Most of these petitions are filed after a case has been heard in a federal appeals court. The justices review each petition and choose which cases to hear by the so-called “Rule of 4.” If four justices vote to review a case, then the petition is granted and oral arguments are scheduled.
Time will become a hindrance for the department should it choose to proceed by this approach. The Court sits from early October to the end of June, and is no longer scheduling cases for arguments during this term. Should the Department follow standard cert procedure, the case will not be heard until at least October, and many more months could elapse thereafter before a decision is handed down. This long timeframe is especially detrimental to the government’s case — choosing to pursue a lengthy appeals process could undermine the administration’s argument that the order was motivated by urgent threats to national security.
The department could also file an emergency petition with the Court, asking the justices to stay lower court rulings blocking the order and reinstate it on a temporary basis while the Court decides how to proceed. This request would be submitted to Chief Justice John Roberts, who handles emergency matters arising from the 4th Circuit. Roberts is then likely to refer the petition to the full Court.
An order staying the lower court rulings and reinstating Trump’s directive — on a temporary basis — requires five votes. The justices could issue such an order and then deliberate as to whether they should accept the case. In the alternative, they could deny the emergency petition, and the government would then follow turn to the standard cert procedure to seek review.
There is also the matter of the 9th Circuit to consider. The court is much more likely to review the case if the 4th and 9th Circuits reach different conclusions as to key questions of the controversy. The Supreme Court’s primary function is to ensure uniformity of federal law.
If multiple federal courts differ over a particular question, the court is more likely to address it in order to protect homogeneity. Therefore, the Department may wish to wait for the 9th Circuit’s decision before petitioning the Supreme Court, in hopes that major differences between the rulings would engender greater interest in the case among the justices.
The 9th Circuit’s decision is expected in a matter of days.
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