Trump’s legal options in travel ban case

Fight over executive order seems headed for Supreme Court.

WASHINGTON — — Shortly after Thursday’s appeals court decision blocking his travel ban, President Donald Trump vowed to fight on. “SEE YOU IN COURT,” he wrote on Twitter. But which court? Here is a look at Trump’s options:

Two roads to the Supreme Court

Trump could file an emergency application to the Supreme Court, asking the justices to stay the trial court’s ruling blocking his executive order suspending travel from seven mostly Muslim countries. That is the only way for him to try to obtain a very fast ruling. Since Trump has said the court rulings against his travel ban pose an immediate threat to the nation’s security, he might be expected to pursue this strategy.

If he does, the Supreme Court could act within days. Under its usual practices, it would not hear arguments and would issue a very brief order announcing the outcome, with little or no legal reasoning.

Richard J. Lazarus, a law professor at Harvard, said the justices should take a different approach in this case if the administration files an emergency application, recalling that the court heard arguments in very short order when the Nixon administration in 1971 unsuccessfully sought to block the New York Times and the Washington Post from publishing a secret U.S. military history of the Vietnam War dubbed the Pentagon Papers.

“The court should receive briefs from both sides, hear oral argument, deliberate among themselves in person, and then decide,” Lazarus said. “They can do so quickly, as they have done in the past, for example in the Pentagon Papers case.”

But many legal experts say Trump’s chances of success at the Supreme Court, which for a year now has had just eight members — four liberal and four conservative — are slim. A 4-4 tie would leave the appeals court ruling in place.

Trump could also seek to file a more conventional petition seeking review of the appeals court’s ruling. That would be more orderly, and it would allow the parties to file detailed briefs attacking and defending the appeals court’s reasoning.

It takes only four votes for the Supreme Court to agree to hear a case this way. Under its ordinary practices, though, a decision on whether to hear the case would probably not come until April, and arguments would not be scheduled until October.

By then, the Supreme Court may be back at full strength if Trump’s nominee, Judge Neil Gorsuch, is confirmed.

A new hearing in the appeals court

The ruling Thursday from a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, was unanimous, But the court, without prompting, called Friday for a vote to determine whether the entire court should rehear the case. The court asked for briefs from those involved in the case next week.

Were the 9th Circuit to grant a petition for rehearing, the case would ordinarily be heard by an 11-member panel, including the circuit’s chief judge and 10 judges chosen at random. It is at least possible that such a panel would rule for Trump.

But this strategy also requires time, and the case would still probably end up in the Supreme Court.

More proceedings in the trial court

Judge James Robart, who entered the temporary restraining order, has also set a briefing schedule on the question of whether he should make his ruling more permanent by issuing a preliminary injunction. The last of those briefs is due Friday.

If the administration were inclined to submit additional evidence justifying the ban, the trial court would be the place to do it. But it is not clear whether there will be further proceedings before Robart on whether he should issue a preliminary injunction.

On Thursday, just after the 9th Circuit’s ruling, a lawyer for Washington state wrote a letter to Robart saying the appeals court had effectively entered the preliminary injunction.

“In light of the court of appeals decision,” Noah G. Purcell, Washington state’s solicitor general, wrote, “the states assume the district court briefing schedule is no longer applicable. The states will not be filing a preliminary injunction motion and brief in the district court tonight, unless we receive contrary guidance from the district court.”

Starting from scratch

Finally, the administration could issue a narrower executive order on a travel ban. It would probably be promptly challenged in court.