President Donald Trump’s dire warnings about foreign threats might drive him to seek immediate Supreme Court help with his now-stalled travel ban, but his best shot for now may be to return to the court run by the man he called a “so-called judge.”
President Donald Trump’s dire warnings about imminent foreign threats might drive him to seek immediate Supreme Court help with his now-stalled travel ban, but his most pragmatic legal move may be back to the Seattle court run by the man he denounced as a “so-called judge.”
All paths to the high court start from Thursday’s unanimous decision by a three-judge panel of the 9th U. S. Circuit Court of Appeals not to reinstate Trump’s executive order temporarily banning entry by citizens of seven majority Muslim nations.
Trump is expected to quickly request an emergency stay of that ruling from the Supreme Court, in hopes of putting his temporary immigration ban back into effect. But such emergency orders are rarely granted, and the prospects are poor that the high court, divided 4-4 between liberal and conservatives, can muster the five votes needed to grant one.
“The president may well say, ‘I don’t care what the Supreme Court does, we still have to show that I think my executive order was correct so please file an appeal to the Supreme Court,” Cornell University Law School professor Stephen Yale-Loehr said. “The disadvantage is that its rare for the Supreme Court to take up emergency appeals.”
The short-handed Supreme Court will almost certainly catch the case at some point. But when, how often and under what circumstances require tough tactical and strategic choices from a Trump team that so far has lost its legal arguments repeatedly.
Underscoring the complicated, multi-front nature of the legal conflict, a Virginia-based federal judge on Friday morning heard oral argument on other challengers’ request for a separate injunction blocking Trump’s executive order.
“All of us welcome and benefit from immigration, tourism, and international student travel,” California and more than a dozen other states stated in a brief filed Thursday, “and all of us face concrete, immediate, and irreparable harms caused by the Executive Order.”
The oral argument Friday morning before U. S. District Judge Leonie M. Brinkema, a Democratic appointee, came about 15 hours after the 9th Circuit repudiated Trump with its ruling.
Author of a 21-volume treatise on immigration law, Yale-Loehr said an immediate appeal to the Supreme Court of the 9th Circuit’s ruling would be about the president “making a political statement to show that he’s serious about trying to protect the United States against terrorist threats.” Such a statement might inevitably follow Trump’s storyline in which further judicial delay endangers the country.
On Friday morning, Trump tweeted that the 9th Circuit panel had made a “disgraceful decision!” He posed an even-more ominous scenario following U. S. District Judge James Robart’s Feb. 3 decision imposing a temporary restraining order on the travel ban, tweeting that he “just cannot believe a judge would put our country in such peril” and that “the judge opens up our country to potential terrorists.”
But while Trump’s imminent-threat narrative might push him toward an immediate Supreme Court appeal, he would face long odds. It takes five justices to grant an emergency stay of a lower court’s order, and that threshhold is harder than ever to reach with the eight current justices split evenly among four Republican and four Democratic appointees.
Going to the Supreme Court right away would stretch out decision-making for several days, as legal briefs would have to be filed and considered. Another immediate loss for Trump, while it wouldn’t fully address the case for and against the executive order, would also simply look bad for the president.
“They don’t want a bad precedent on their side,” said Polly Price, an Emory University law professor. “If it looks like they would get a definitive ruling really limiting president’s power here, this might not be the kind of case they want to risk that. . .. I don’t think they want to risk it on an issue like this, which seems so easy to lose.”
Once back at Robart’s Seattle courtroom, whether that happens immediately or after an initial Supreme Court detour, the legal challenge by the states of Washington and Minnesota to the executive order will be judged on its merits. This, too, will take some time.
The Justice Department’s brief opposing the states’ request for an injunction is due Wednesday, with the states’ response to that due two days later. After what’s likely to be further oral argument, Robart would rule.
“We are fully confident that now that we will get our day in court and have an opportunity to argue this on the merits, that we will prevail,” White House counselor Kellyanne Conway said on Fox News.
In its 29-page decision Thursday upholding Robart’s earlier temporary restraining order, the 9th Circuit’s three-judge panel disagreed. “The government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury,” the panel ruled.
While this does not mandate Robart’s ultimate decision, it does predict it.
“You don’t have to read between the lines very much to infer they think that the federal government is likely to lose,” said Michael Dorf, professor of constitutional law at Cornell Law School.
Robart’s decision will lead to another appeal to the San Francisco-based 9th Circuit, though it would be heard by a different three-judge panel than the one that ruled Thursday. Whichever side loses at that stage can then choose either to request a so-called en banc review by all active 9th Circuit judges or, perhaps more likely if it’s the government that loses, they can head to the Supreme Court.
