Four options remain in challenge to federal ruling

WASHINGTON: US President Donald Trump’s Department of Justice has several options to challenge Thursday’s ruling by a federal appeals court, which refused to reinstate the temporary travel ban targeting seven majority-Muslim countries.

The department said in a statement on Thursday that it was reviewing those options. The ruling came on the same day that Attorney-General Jeff Sessions was sworn in, meaning the former Alabama senator will have a big decision to make within hours of taking the job.

1. GO TO THE SUPREME COURT

The administration could appeal directly to the Supreme Court. That could be a difficult road, however, as the court remains short one justice and deadlocked 4-4 between conservatives and liberals. With Mr Trump’s nominee to fill the vacant ninth seat, Neil Gorsuch, just beginning a lengthy confirmation process, the high court could decide not to hear the president’s appeal. Five votes are needed to overturn the lower court’s decision.

2. GO TO THE FULL COURT OF APPEALS

The Justice Department instead could appeal against the three-judge panel’s decision to the full US Court of Appeals for the 9th Circuit. An “en banc” appeal, as it is referred to in court, would allow Mr Trump’s legal team to appeal to 11 judges who would re-hear the case and issue a new ruling. But that could also prove difficult, because the San Francisco-based court is considered the most liberal in the country. Eighteen of the judges were appointed by Democratic presidents compared with just seven appointed by Republicans. The administration has 14 days to request that kind of appeal.

3. GO BACK TO WASHINGTON STATE

Another option is to allow the appeals court ruling to stand and return to the federal judge in Seattle who initially blocked Mr Trump’s plan a week ago. The ruling from the 9th Circuit only deals with the temporary restraining order issued by District Judge James Robart on Feb 3. Temporary restraining orders are designed to be brief, generally lasting about 14 days. The next step would be a preliminary injunction, which can remain in place indefinitely.

A hearing for a preliminary injunction is already taking shape. Mr Robart has given both sides until Feb 17 to file their motions and it’s expected he would schedule a hearing soon after that. His decision in that case would probably result in another round of appeals. After those are completed, then Mr Robart could hold new hearings to decide the case on the merits — the final phase that would determine whether Mr Trump’s executive order is legal. That decision would also face appeals and could end up before the Supreme Court.

4. WRITE A NEW EXECUTIVE ORDER

It may not be the president’s inclination, but the appeals court panel hinted that a scaled-back executive order that did not bar all citizens from the seven countries might have a better shot at clearing legal hurdles. The court noted that the White House counsel’s office has already proposed allowing travel by lawful permanent residents of the US. It said such a change should come from the president. At the same time, the administration could eliminate references to religions.