The administration is expected to appeal ruling blocking the ban to the Supreme Court
The 9th Circuit is waiting to make a ruling on challenge against Hawaii decision
Hours after a federal appeals court issued a scathing rebuke of President Donald Trump’s revised travel ban last week, Attorney General Jeff Sessions vowed to appeal the decision to the Supreme Court. Sessions was echoing his boss’ tweet after the first travel ban was struck last February: “SEE YOU IN COURT.”
Like the President, Sessions did not specify how or when the DOJ would appeal the decision. But the next steps the Trump administration takes will likely determine the future of a revised executive order that has never gone into effect.
Here’s what’s happened and what’s next:
4th Circuit upholds order blocking ban
A majority of the federal appeals court based out of Richmond said last week that the travel ban likely violates the Constitution’s Establishment Clause that “stands as an untiring sentinel for the protection of one of our most founding principles – that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another.”
Without mincing words, Chief Judge Roger L. Gregory said that the executive order is composed of “vague words of national security” but in context “drips with religious intolerance, animus and discrimination.” The judges upheld the block on the executive order pausing travel for 90 days from six majority-Muslim countries: Iran Libya, Somalia, Sudan, Syria, and Yemen.
Regurgitating Trump’s words on the campaign trail and as President, the majority concluded that the President had expressed “anti-Muslim sentiment, as well as his intent, if elected, to ban Muslims from the United States.”
Concurring judges chimed in to say that the ban could be blocked for other reasons.
Judge James A. Wynn Jr. said he believes the ban “exceeds the President’s authority under the Immigration Act.” And Judge Stephanie D. Thacker, said she didn’t even think the court needed to consider the President’s remarks as candidate to reach its conclusion.
9th Circuit waiting to rule
At any moment, a three-judge panel of the 9th Circuit is set to rule in a broader challenge that targets not only travel from the six countries but a separate refugee ban. The case is brought by the attorney general of Hawaii.
Acting Solicitor General Jeffrey Wall argued in court that “no one has ever attempted to set aside a law that is neutral on its face and neutral in operation on the basis of largely campaign trail comments made by a private citizen running for office,” he said.
Neal Katyal, the lead lawyer for Hawaii, argued in court papers that he is not only challenging the law on the Establishment Clause. “The order also exceeds the President’s statutory authority and contravenes the constitutional guarantee of Due Process,” he wrote.
Katyal could be thinking ahead to the Supreme Court.
“Because courts are reluctant to reach complicated constitutional questions if they don’t have to, the justices could rule on statutory grounds and find that Congress hasn’t granted the President the authority to issue an order of this kind,” said Anil Kalhan of Drexel University Thomas R. Kline School of Law.
At oral arguments the three judges on the 9th Circuit expressed interest in those statutory arguments. The panel’s ruling could help determine if the Supreme Court takes up the case – and questions it might consider.
The dissenters in the 4th Circuit case made one thing clear: They do not think the Supreme Court will hold the President’s campaign statements against the administration.
“Unless corrected by the Supreme Court, the majority’s new approach, which is unsupported by any Supreme Court case, will become a sword for plaintiffs to challenging facially neutral government actions, particularly those affecting regions dominated by a single religion,” Judge Paul V. Niemeyer wrote.
And as he often is, Justice Anthony Kennedy will be key. Both sides are scrutinizing an opinion he wrote in 2015 regarding an immigration case in which a US citizen challenged the government’s refusal to issue a visa for her spouse with little explanation.
But just because the court currently consists of five conservative leaning judges and four liberals, it does not mean the case will break down along the usual ideological divide if it makes it to the high court.
The travel ban touches not just on immigration, but involves issues such as the authority of the executive and the freedom of religion.
But one thing is certain: it likely won’t split 4-4 because Justice Neil Gorsuch – President Trump’s nominee – is on the bench.
Timing of appeal
Although Sessions said hat he would appeal the decision – he left few details.
What seems unlikely is that the government will choose the slow route asking the Court to grant cert and hear the case next term.
More likely the administration will file an emergency motion. Writing for the Take Care Blog, lawyer Joshua Matz, who has filed a brief in support of the challengers, points out that the revised travel ban is unique in one respect. It is time-limited.
The key provision at issue, for example, directs that the entry into the US by nationals of six countries… be suspended for 90 days.
“This quirk in the order’s shelf life,” Matz writes, has “significant implications.”
If the administration files an application and the justices grant the request, “the Muslim Ban will go into effect, operate for the 90 days, and then expire on its own terms” he said. But the order also allows for the 90-day timeline to be extended.
The court could also do something it hasn’t done in a very long time: hold arguments over the summer.
The justices rarely break into the summer recess, and they would have to be convinced that the administration had a genuine need for the issue to be resolved quickly.
“The justices have been reluctant in recent years to hold special sessions and they may be wary of causing a sensation by doing so here,” wrote Matz.