Higher legal appeal may end dispute triggered by travel ban

Conflicting verdicts from lower courts

NEW YORK // The executive order suspending the US refugee programme and entry of travellers from seven mainly Muslim countries is likely to end with an appeal to the supreme court, legal experts say.

Whatever the outcome of the government’s emergency appeal in San Francisco yesterday against a decision to suspend the ban, both sides will have the right to take their case to the highest court in the land.

At issue are how far the president’s power extends and whether his order banning the entry of people from Iran, Iraq, Syria, Libya, Sudan, Somalia and Yemen has unleashed chaos.

Few expected Donald Trump’s move to be challenged so soon.

Jeanne Zaino, a professor of political science at Iona College, said a higher appeal was inevitable but that persuading the required four out of the eight sitting justices to hear the case could prove difficult. “On the one hand, it makes sense for the court to hear the case because you have had conflicting decisions from the lower courts, but on the other, the court is going to be very, very cautious of stepping into the political fray right now,” she said.

If the supreme court justices decline to hear the case, the ruling of the appeal court will stand.

The legal crisis came to a head when US district judge James Robart blocked Mr Trump’s order on Friday. Within a day, 60,000 people whose visas were revoked were informed they could now travel to the US after all.

That triggered an immediate appeal by Mr Trump’s administration to the Ninth Circuit Court of Appeals in San Francisco.

The government is confident of being able to reintroduce the restrictions. “Once we win, it will go right back into action,” said White House spokesman Sean Spicer.

But a powerful alliance stands against the Trump administration. Technology companies have filed legal papers saying it hinders their ability to recruit skilled foreign workers.

Several national security and state department officials – including former secretaries of state John Kerry and Madeleine Albright – said the order did nothing to make the US safer.

Jack Goldsmith, a law professor at Harvard who served in the George W Bush administration as legal counsel, said the order was “issued in haste, without proper inter-agency coordination, without proper notice, without adequate consideration of its implications, and with a media strategy – if it was that – that suggested that the EO was motivated by discrimination against Muslims”.

Even if the case does end up in the supreme court, there is no guarantee of clarity.

With one of its nine seats vacant after the death of justice Antonin Scalia in February last year, a 4-4 deadlock seems almost inevitable, with the bench balanced between conservatives and progressives. In the event of a tie, the decision of the lower court in San Francisco will stand.

Meanwhile, the clock is ticking. The ban was only set to last 90 days from the date the executive order was signed.

Erwin Chemerinsky, dean of the Irvine School of Law at California, said the system – the constitutional checks and balances on presidential power – was working as intended, meaning the case would not drag on.

“It could end very quickly,” he said.