Justice Dept. has options including reexamination by larger panel in 9th Circuit of judges or Supreme Court
Right now, foreign travelers from the seven banned countries can enter the US
Lawyers in Virginia will argue provisions in ban are unconstitutional on Friday
Now that a three-judge panel of 9th Circuit Court of Appeals has rejected the government’s emergency request to reinstate the travel ban – what happens next in the case?
President Donald Trump immediately tweeted his reaction to the ruling: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” But what court?
The Justice Department has a variety of options for how to proceed next to try to persuade another court to grant its emergency motion to “stay” (i.e., stop) US District Court Judge Robart’s temporary restraining order suspending key provisions of the travel ban.
Trump's travel ban blocked
One option would be to try to file a “petition for rehearing en banc,” which would seek a reexamination of the case by a larger panel of 9th Circuit judges in the hopes that they would reverse their colleagues’ decision.
Or the Justice Department may opt to skip another round with the 9th Circuit and try to appeal directly to the Supreme Court.
At the moment, there are only eight justices on the Supreme Court. That means the Trump administration would need to convince five justices to grant the government’s motion to stay Robart’s decision, which is unlikely given that it was a temporary restraining order and not a ruling on the merits of the executive order. And if there is a 4-4 split, then the 9th Circuit’s ruling will be the law of the land.
But whatever route they choose, the overall constitutionality of the travel ban has yet to be determined.
Other cases to watch
While all eyes have been fixated on the 9th Circuit, several other lawsuits remain active across the country, including a legal battle in Virginia.
Friday, attorneys in Virginia are will argue the state attorney general’s motion for a preliminary injunction to prevent enforcement of the travel ban nationwide. The state argues that the central provisions of Trump’s executive order – barring citizens of Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen from entering the US for 90 days and temporarily cutting off refugee admissions – are unconstitutional.
As of now, those provisions of the executive order remain temporarily suspended nationwide because of a decision issued by Robar and now reaffirmed by the 9th Circuit on Thursday evening. As a result, foreign travelers from the seven banned Muslim-majority countries have been allowed to enter the US – for now.
Virginia case: A game-changer?
But that decision was only a temporary restraining order, and the lawyers in Virginia are seeking a more permanent ruling while the case proceeds to trial.
“The hearing on the preliminary injunction (on Friday) will be one of the most significant developments in any case in the country challenging the suit because it will be the most in-depth examination of the merits of the arguments against the ban,” Michael Kelly, a spokesperson for Virginia attorney general’s office, said in a statement.
Thus, in the event that Robart’s order is ultimately struck down or limited in some way by the larger panel of Ninth Circuit judges (or the Supreme Court), then what happens in Virginia on Friday could quickly become a game-changer.