"The President's third travel ban, like his first and his second, is irreconcilable with the immigration laws and the Constitution," Neal Katyal, a lawyer for the state of Hawaii, argued in court papers.
Travel ban 3.0, issued on September 24, places varying levels of restrictions on foreign nationals from eight countries: Chad, Iran, Libya, North Korea, Syria, Venezuela, Somalia and Yemen.
So far, in two separate challenges, the ban has been partially blocked.
In the Hawaii case, a district court judge blocked the ban from going into effect except as it pertains to Venezuela and North Korea. But a three-judge panel of the Ninth Circuit Court of Appeals partially lifted that order. The appeals court allowed the ban to come into effect except for foreign nationals who have "bona fide" relationships with people or entities in the United States. The language of the order was adopted from a Supreme Court order pertaining to an earlier version of the ban.
In the new filing, Katyal urged the justices to leave the lower court's ruling -- that echoed the justices' own words from the previous case -- intact.
"This court has already struck the equitable balance that governs this appeal, and the President's claim to unlimited power over immigration remains without merit," Katyal argued. "The government's application for a stay should be rejected."
In a separate challenge out of Maryland brought by, among others, the International Refugee Assistance Project, US District Court Judge Theodore D. Chuang issued a similar order also partially enjoining the ban in a case that is now pending before the Fourth Circuit Court of Appeals. American Civil Liberties Union lawyers, who represent the group, told the Supreme Court on Tuesday that the government's request would "upend the status quo, rather than preserve it, and would threaten plaintiffs with grave and irreversible hardships."
Both cases are scheduled to be heard before the appeals court next week.
In papers filed with the Supreme Court, Solicitor General Noel Francisco defended the ban, arguing that "the Constitution and acts of Congress confer on the President broad authority to prevent aliens abroad from entering this country when he deems it in the nation's interest." Francisco argued that the ban was necessary "in order to protect national security."
He also sought to differentiate the President's most recent ban from prior iterations.
"It is the product of a review process undertaken by multiple Cabinet officers and government officials," Francisco wrote, "and it is based on express findings of inadequacies in the information sharing practices, identity-management protocols, and risk factors of certain countries."