The move likely delays any high court action on the administration's two emergency applications asking for the ban issued on March 6 to immediately go into effect. The only branch of the government that is acting outside its constitutional authority is the judicial branch, not the executive branch.
The Supreme Court could discuss how to act on the emergency application at its private conference on June 22, a week after the Gorsuch ceremony.
Plaintiffs in the Fourth Circuit case had argued to the Supreme Court that the 90-day ban on nationals from six designated countries ended on Wednesday, which is 90 days from the "effective date" of March 16 written into the executive order. The Hawaii judge also blocked a 120-day ban on refugees entering the United States.
The Supreme Court will decide whether to take the case on Wednesday.
But if the conservative majority on the Supreme Court is inclined to stay within the "four corners" of the executive order's text and not broadly consider the motivation behind it, the 9th Circuit shows it still can not be upheld. He also denied that the travel ban has any relation to religion.
The White House announcement comes as the Supreme Court considers whether to revive the stalled ban, which would suspend entry into the U.S.by people from six mostly Muslim nations. "The President was clear in his landmark speech in Saudi Arabia: this is not about religion; it is about national security". The Fourth Circuit court based the decision on Trump's public record of statements indicating his order was motivated by anti-Muslim sentiment rather than national security concerns. A three-judge panel ruled in favor of Hawaii's challenge of the president's revised travel ban. "It can not go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation".
"We have asked the Supreme Court to hear this important case and are confident that President Trump's executive order is well within his lawful authority to keep the nation safe and protect our communities from terrorism", Justice Department spokesperson Sarah Isgur Flores said at the time.
Masri noted that CAIR filed an amicus ("friend of the court") brief in the case.
The stakes are heightened by the fact that Trump's so-called travel ban, one of his signature policies, is now before the justices after being blocked by lower courts.