President Donald Trump has no intention of backing down from his fight against a federal judge who blocked his travel ban on seven predominantly Muslim nations despite warnings that he risks limiting future presidential powers.
“We are not rethinking this strategy at all,” White House Press Secretary Sean Spicer said Monday. “This executive order was done in the best interests of protecting the American people.”
The U.S. 9th Circuit Court of Appeals will hear arguments Tuesday on whether to restore Trump’s controversial immigration order. The court could decide the case by the end of the week, which would set it up for a historic Supreme Court battle.
But if he loses in the 9th Circuit, Trump faces a big risk taking the fight to the Supreme Court where a 4-4 split would uphold the appeal’s court decision.
Trump may be better off allowing his 90-day review of the nation’s immigration system to finish, drop his challenge and declare victory, say legal experts. But few see the antagonistic president backing away from his vows to fight for his travel order – nor would his supporters want it any other way.
“This is a core issue they ran on, and I think they believe the order, as written, gives the Department of Homeland Security the flexibility necessary to smoothly execute it,” said Scott Jennings, a veteran Republican operative who was political director for former President George W. Bush. “Modifying the order could send a signal they were compromising on their principles and promises to the American people, which I don’t think they want to do until the legal process runs it course.”
Why is all of this energy being given now to this order when in the end it could end badly for the president?
Leon Fresco, former Obama administration official
Over the weekend, Hawaii joined several high-tech companies, national security experts and a host of other interested parties filing briefs supporting the challenge to Trump’s order, brought by the states of Minnesota and Washington.
In court documents filed Monday night, the Trump administration argues that Congress has granted the president broad discretion to suspend the entry of “any class of aliens” into the United States, and, independently, also broad discretion over the refugee program.
But the administration also indicated it’s open potentially to modifying the order to reduce its impact on people who already have visas and are in the country and wish only to travel outside and return.
As the court battle is joined before the 9th Circuit, legal scholars and former Obama administration officials say Trump risks not only embarrassing himself if he loses the fight, but setting harmful precedent that would limit future presidents’ powers.
“Why is all of this energy being given now to this order when in the end it could end badly for the president?” asked Leon Fresco, who headed the U.S. Department of Justice’s Office of Immigration Litigation under President Barack Obama.
A loss at the Supreme Court could weaken the notion that the president has unchallenged power with respect to immigration. It would also be a symbolic blow against the Trump administration written into the law.
Obama suffered a similar blow when the Supreme Court blocked his attempts to use an executive order to grant a reprieve to undocumented immigrants, and George W. Bush faced similar losses when the court ruled against him regarding the treatment of detainees at the Guantanamo Bay prison.
Spicer emphasized the administration has no plans to back down.
“The president is committed to make sure the country and its people are safe,” Spicer said.
While unlikely, the case could drag out long enough for Trump to get his nominee, Judge Neil Gorsuch, on the bench. But even if the case should linger long enough that Gorsuch is seated, there is no guarantee Gorsuch would side with Trump.
In one of his best known opinions, Gorsuch ruled on behalf of an immigrant plaintiff against the government. The conservative judge criticized the idea that courts must defer to the executive branch’s interpretation of federal law.
“Judge Gorsuch is generally quite conservative, but he’s not anybody’s stooge and one of his best known opinions is denying deference to the government in favor an immigrant plaintiff,” said Michael Dorf, a constitutional law professor at Cornell University.
We are not rethinking this strategy at all.
Sean Spicer, White House press secretary
Trump has left himself little room but to fight after a series of Tweets over the weekend eviscerating U.S. District Judge James Robart’s decision against the ban.
Doing otherwise could make him look weak in the eyes of supporters, said Republican strategist Evan Siegfried.
“There are the people who are the Trump base who expect him to fight because that is what he said he’ll do – ‘Damn the torpedoes attitude,’ ” said Siegfried, who wrote the book GOP GPS. “And to not do that would be him selling out like he said other people in Washington do.”
Michael Doyle contributed to this article.