Courts: Administration appears in no rush to appeal ban rulings

President Trump says his proposed freeze on admission of anyone from six overwhelmingly Muslim nations, and on all U.S. admissions of refugees, is urgently needed to protect Americans from incoming terrorists. But since federal courts blocked his order last week, the Justice Department has shown no sign of any pressing need for action.

Trump’s current executive order — issued a month after federal courts halted enforcement of an earlier, broader version — was scheduled to

take effect Thursday, but was blocked hours earlier by a federal judge in Hawaii as an apparent act of religious discrimination. A federal judge in Maryland issued a similar ruling early Thursday, limited to the six-nation ban.

Nearly six days have passed, and the Justice Department has yet to ask any higher court for immediate intervention, and by all outward indications, is treating the case as a routine appeal.

“In any ordinary case, the Justice Department’s delay would not be significant. But here it is a surprise,” said Adam Winkler, a UCLA law professor. “Trump claimed these rules were absolutely essential and requested immediate implementation. The department’s lawyers ... had ample time to prepare a rapid response. Yet we find delay.”

The Justice Department’s response “is devastating to their argument” that the need for executive action is urgent, said Bill Ong Hing, a University of San Francisco law professor and founder of the Immigrant Legal Resource Center in San Francisco.

Asked about the matter, spokeswoman Nicole Navas said Monday, “The department declines to comment on legal strategy.”

Whatever the purpose of that strategy, it could have the effect of allowing Trump’s Supreme Court nominee, Neil Gorsuch, to take part in the case when it reaches the high court. The Senate Judiciary Committee held its second day of confirmation hearings Tuesday for Gorsuch, a judge on the 10th U.S. Circuit Court of Appeals in Denver.

When Trump’s original order was blocked Feb. 3 by a federal judge in Washington state, the Justice Department immediately asked the Ninth U.S. Circuit Court of Appeals in San Francisco for an emergency stay, which was denied. Trump had hinted of an appeal to the Supreme Court, but the department instead dropped the case.

After last week’s decisions, the department waited until Friday, then filed an ordinary notice of appeal of the judge’s ruling in Maryland with the Fourth U.S. Circuit Court of Appeals in Richmond, Va.

The appeals court responded with a schedule that called for the Justice Department to file an opening brief by April 26, followed a month later by written arguments from the refugeesupport groups that filed the suit. The department did not object to the schedule.

Trump’s lawyers showed even less urgency in the Ninth Circuit, which supervises federal courts in nine Western states, including Hawaii, Washington and California.

Two days after U.S. District Judge Derrick Watson’s ruling last Wednesday that barred nationwide implementation of Trump’s order, the Justice Department asked Watson to “clarify” that his decision applied only to the six-nation travel ban and not to the halt on refugee admissions. Watson tersely rejected that reading in a oneparagraph order on Sunday.

Two days later, at the request of both sides in the case, Watson ordered further written arguments and scheduled a hearing next Wednesday on whether to replace his temporary restraining order against Trump with a longer-lasting injunction. As of Tuesday, the Justice Department had not filed anything with the Ninth Circuit.

It was a striking contrast to Trump’s personal response. At a rally in Nashville last Wednesday, the president told supporters he had learned minutes earlier of a decision from Hawaii that endangered “the safety of our nation, the safety and security of our people,” issued by a judge for unspecified “political reasons.” Trump promised to “fight this terrible ruling” and defeat it in the Supreme Court.

A day later, press secretary Sean Spicer said the administration would challenge both the Hawaii and Maryland rulings because “the danger is real, and the law is clear.”

One legal commentator said the government’s actions speak louder than its words.

The Justice Department’s leisurely pace “undermines the claim of urgent national security necessity for a blanket ban,” said Pratheepan Gulasekaram, a professor of immigration law at Santa Clara University. “You would expect that if, as the president and his advisers claimed, any delay would allow national security threats into this country, then they would be pushing for immediate reviews and stays.”

On the other hand, the Justice Department’s timetable increases the likelihood that Gorsuch, Trump’s Supreme Court nominee, will win Senate confirmation and join the court before the case arrives.

Gorsuch, a federal appeals court judge since 2006, has not ruled on any cases involving presidential orders or terrorism. But he worked on legal issues involving interrogation methods as a lawyer in President George W. Bush’s Justice Department, spoke favorably of conditions at the Guantanamo Bay prison camp, and has advocated interpreting laws according to their text without considering outside evidence of lawmakers’ intentions, a potentially important issue in the travel ban case.

One explanation for the Justice Department’s approach to the case, Gulasekaram said, is that “they think they have a better chance in the Supreme Court after Gorsuch is seated.”

But Trump shouldn’t take Gorsuch’s vote for granted, said Pamela Karlan, a Stanford law professor and former Justice Department attorney in President Barack Obama’s administration.

“If it were almost any other president, my guess is, somebody who took the positions that Neil Gorsuch took when he was in the (Bush) administration would likely be deferential to presidential power” on issues of immigration and national security, Karlan said.

“But when you have a president who has said as many times as he (Trump) has, ‘I just want to ban all Muslims from the country,’ it’s hard for judges not to look behind that.”