Legal intrigue for revised travel ban
Trump could slow appeal to get Gorsuch on Supreme Court
President Trump vowed to take the legal fight over his temporary travel ban targeting majority-Muslim countries all the way to the Supreme Court. Now, in the wake of a second judicial repudiation, some legal experts say Trump’s lawyers may slow down an appeal until his Supreme Court nominee is confirmed and can provide a decisive vote.
After a federal judge in Hawaii issued a nationwide temporary restraining order Wednesday, the next logical step is an appeal to the 9th U.S. Circuit Court of Appeals in San Francisco, where a three-judge panel ruled against Trump’s first version of the ban last month. Trump’s lawyers also might go to the 4th Circuit appeals court in Richmond, Va., to try to overturn a separate order blocking the ban issued by a U.S. judge in Maryland Thursday.
The final appeal would be the Supreme Court. The problem with that step is the court is currently deadlocked, 4-4, along ideological lines since the death of Justice Antonin Scalia 13 months ago, and a tie vote would leave the appeals court ruling in place.
A way around a deadlock is to wait for Trump’s court nominee, appeals court judge Neil Gorsuch, to join the bench. The Senate is scheduled to begin hearings on his nomination next week. Confirmation in the Republican-controlled Senate could require several more weeks — assuming Democrats don’t employ rules that would stall the nomination.
“The wisest course is to appeal the ruling, get the bad decision we all expect from the 9th Circuit, and then hopefully get to the Supreme Court with Gorsuch already confirmed,” said Hans von Spakovsky, a senior legal fellow at the Heritage Foundation, a conservative think tank in Washington, D.C., that advises the Trump administration.
The department has given lit- tle indication of how it will defend Trump’s revised ban. In a statement Wednesday night, the department said it was reviewing its options and promised to “defend this Executive Order in the courts.”
The White House says the order is necessary to give the government time to develop extreme vetting procedures for people from six terror-prone countries and prevent terrorists from infiltrating the U.S. through the legal immigration system or the refugee program. On Thursday, White House press secretary Sean Spicer said Justice was reviewing the “legal strategy and timing ” of the upcoming appeals, vowing that they would begin “soon.”
“The danger is real and the law is clear: the president was elected to change our broken immigration system and he will continue to exercise his constitutional authority and presidential responsibility to protect our nation,” Spicer said.
The order, signed March 6, bars citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen for 90 days and all refugees for 120 days. It made significant changes from the first order imposed Jan. 27 — removing Iraq, ending an indefinite suspension of Syrian immigration and allowing foreigners of those countries who hold valid visas or legal permanent residence (known as a green card) to continue traveling.
U.S. District Judge Derrick Watson in Hawaii blocked the revised order hours before it was set to go into effect on the grounds that it violates constitutional protections of religion by targeting Muslims.
The administration showed its reluctance to take its case to the Supreme Court last month.
Justin Cox, an attorney with the National Immigration Law Center who successfully argued before the judge in Maryland, said any attempts by Justice to slow-walk the appeals process would show a glaring problem with the order.
“The slower they walk it, the more they undermine their already-weak claims that this is an urgent matter of national security,” Cox said. “It wouldn’t surprise me.”
“The slower they walk it, the more they undermine their already-weak claims that this is an urgent matter of national security.” Justin Cox, attorney, National Immigration Law Center