WASHINGTON _ President Donald Trump's lawyers made a final appeal to the Supreme Court on Wednesday in the pending dispute over his travel ban and quoted Justice Anthony Kennedy _ likely a key swing vote _ on the need to defer to the chief executive on matters of national security.
The justices are set to meet Thursday morning in their last scheduled conference before the summer recess, and they face a potentially momentous decision on the president's power to control national borders.
The justices will vote on what to do about Trump's plan to temporarily "suspend" the entry of foreign travelers from six Muslim-majority nations.
Trump's order has never taken effect. A judge in Maryland blocked it, and the 4th Circuit Court agreed on the grounds it reflected religious discrimination against Muslims. A judge in Hawaii also blocked it, and the 9th Circuit Court in California upheld his decision, ruling Trump had not shown the travel ban was needed to protect against terrorism.
The administration's lawyers insist both rulings are fundamentally mistaken. And they have filed two separate requests with the high court.
First, they urged the justices to issue an order that would allow Trump's plan to take effect immediately. If so, the limited ban would run for 90 days.
And second, they asked the justices to grant review in the fall of the two lower rulings so they can rule broadly on the president's power to prevent certain foreigners from entering the country.
In Wednesday's appeal, acting Solicitor Gen. Jeffrey Wall quoted Kennedy's words from an opinion issued two days ago. "National security policy is the prerogative of the Congress and the president," Kennedy said. Courts should "accord deference to what the executive branch has determined is essential to the national security," he said in Ziglar vs. Abbasi.
Kennedy was explaining the court's reasons for throwing out a post-9/11 lawsuit against top Bush administration officials who had ordered a roundup of Muslim immigrants in the New York area.
Not surprisingly, Kennedy also figures to hold a decisive vote in the travel ban case.
It is not clear how the justices will proceed, let alone what they will decide.
One option would be to issue a short order with no explanation. They could refuse to put Trump's order into immediate effect, but also agree to hear the administration's appeal in the fall. If the justices are closely divided, they may opt for this mixed result.
If the court's conservatives can muster five votes, they could put Trump's order into effect immediately. But doing so would almost surely prompt a sharp dissent from the liberals.
It is also possible the justices may agree with some legal analysts who have argued that the need for a temporary travel ban has passed, because Trump's team has now had ample time to devise new "vetting procedures" for the six nations. Even so, however, the court's conservatives are not likely to let the two appellate court rulings stand unchallenged as the law.
