The legal challenge to President Donald Trump’s executive order barring citizens of seven Muslim nations from entering the United States is rocketing toward the Supreme Court, where Republicans’ year-long refusal to fill a vacant ninth seat could determine the outcome.
As early as Monday, a panel of the 9th U.S. Circuit Court of Appeals will decide whether to overturn a Seattle-based trial judge and put Trump’s controversial order back into effect.
But the panel’s initial decision, whichever way it goes, will only be an intermediate step for the challenge now led by the states of Washington and Minnesota. The roadmap for what lies ahead has but one destination, the Supreme Court, whose eight members are evenly split between liberals and conservatives, thanks to the unfilled vacancy created a year-ago by the death of Justice Antonin Scalia.
“They don’t have a comfortable majority,” Yale Law School Professor Harold Koh, a former top State Department official in the Obama administration, said in an interview Sunday, referring to the Trump administration.
The case could be in front of the Supreme Court by the end of the week or next week, added Leon Fresco, the head of the U.S. Department of Justice’s Office of Immigration Litigation under President Barack Obama. The timing depends in part, on whether the 9th Circuit upholds the Seattle judge’s restraining order, whether the government immediately appeals, or waits for other courts to make decisions.
As long as the case remains undecided and Trump’s order blocked, the same tension that has surrounded the order since Trump signed it Jan. 27 is likely to continue. Thousands of travelers Trump intended to block are likely to arrive in the United States unhindered, protest demonstrations probably will continue around the United States, and Trump is likely to continue his Twitter attacks on the judge and his ruling.
At the very least, the Supreme Court’s all-but inevitable consideration of the executive order challenge will rivet even more attention to Trump’s nomination of Judge Neil Gorsuch to the seat formerly held by Scalia. Gorsuch can now expect a larger and louder battery of questions about the limits of presidential power, though it’s unlikely he’ll be seated in time to take part in any hearings on the case.
The injunction contravenes the constitutional separation of powers; harms the public by thwarting enforcement of an Executive Order issued by the nation’s elected representative responsible for immigration matters and foreign affairs; and second-guesses the President’s national security judgment.
Justice Department brief.
Substantively, the high court’s empty seat creates the possibility of a 4-4 split, which would uphold whatever ruling the reputedly liberal 9th Circuit might render. It would take five justices to agree in order for the high court to grant a stay.
The Supreme Court’s and 9th Circuit’s legal considerations, moreover, will occur under the scrutiny of a president who now has repeatedly challenged the legitimacy of judges who displease him. This could compel Justice Department attorneys to assure courts that, yes, the executive branch accepts the judicial branch’s authority to rule on the law.
Vice President Mike Pence expressed confidence the administration’s travel ban would eventually be upheld in a series of appearances on Sunday morning news programs.
“We’ll accomplish the stay and will win the case on the merits,” Pence said on NBC’s “Meet the Press.” “We remain very confident that the president’s actions are on solid constitutional and legal grounds.”
A Republican appointee, U.S. District Judge James Robart, propelled the legal train with a decision Friday night blocking the executive order from taking effect on a nationwide basis – adding his more sweeping order to a half-dozen rulings by other federal judges that backed more limited challenges.
The White House responded angrily, with press secretary Sean Spicer calling the decision “outrageous” in a statement that was later withdrawn and revised.
Trump escalated the rhetorical fight via Twitter, with a storm of Tweets blasting Robart as a “so-called judge” who made a “ridiculous” decision.
“I don’t understand language like that,” Republican Sen. Ben Sasse of Nebraska, who holds a Ph.D in American history, said Sunday on ABC’s “This Week.” “We don’t have so-called judges, we don’t have so-called senators, we don’t have so-called presidents, we have people from three different branches of government who take an oath to uphold and defend the Constitution. So, we don’t have any so-called judges, we have real judges.”
Senate Majority Leader Mitch McConnell of Kentucky added on CNN’s “State of the Union” that “it is best not to single out judges.”
Trump disregarded the advice, returning to Twitter on Sunday afternoon to opine that he “Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!” The running commentary is not likely to help him, legal scholars and practitioners believe.
“Judges are people too,” Koh noted. “If a person doesn’t show them respect they have a normal reaction.”
Late Saturday night, the Justice Department’s Trump-appointed acting solicitor general, Noel J. Francisco, filed a 125-page packet with the 9th Circuit asking that Robart’s nationwide order be stayed.
“The district court’s order contravenes the considered national security judgment of the president that the admission of certain classes of aliens at this time to the United States, under the existing screening and visa-issuance procedures, is not in the national interest,” the Justice Department’s brief argued.
Two 9th Circuit judges, both Democratic appointees, denied the Justice Department’s request for an emergency stay, and instead set a schedule to receive a brief from Washington and Minnesota by midnight Sunday, followed by another Justice Department brief Monday at 3 p.m. Pacific Standard Time. Several former government officials also are expected to file “friend of the court” briefs supporting Washington state’s position.
Whichever side loses at the 9th Circuit can then ask the Supreme Court for emergency action. Such a request would first go to Justice Anthony Kennedy, who handles such cases coming from the 9th Circuit; he, in turn, would likely refer the matter to the entire court. Four justices must agree for the court to take up the appeal; a stay of the 9th Circuit opinion would require a fifth justice to agree.
The case also could be dragged out.
It took months for the 5th U.S. Circuit Court of Appeals to agree with a district judge in Texas that the Obama administration had exceeded the president’s powers and issued a nationwide injunction against Obama’s effort to defer the deportation for millions of undocumented immigrants who had been in the country since 2010.
Fresco said the 9th Circuit could take a similar amount of time if they don’t want to risk the Supreme Court overruling their decision.
“You also have to wonder if the 9th Circuit might do that,” Fresco said. “Maybe they’ll realize that time is on our side here and maybe what we should do is just sit on this for weeks.”