Despite President Donald Trump’s dire warnings about imminent foreign threats, the White House said Friday that it did not plan to appeal a 9th U.S. Circuit Court of Appeals order halting his travel ban on citizens from seven Muslim nations directly to the Supreme Court.
A senior administration official said White House lawyers would likely instead argue the case before the same Seattle court run by the man Trump denounced as a “so-called judge,” and Trump told reporters on Air Force One that options other than a Supreme Court appeal were being considered. While predicting an eventual victory, Trump acknowledged it may take time.
“We will win that battle,” he said. “The unfortunate part is that it takes time statutorily, but we will win that battle.”
Trump also said he was considering issuing a new order that presumably would change aspects of the original order that an appeals court found objectionable.
The senior administration official said the White House might eventually take the case to the high court, but that would depend on how it fared in lower courts.
“All options are on the table,” the official said.
The White House statement came 24 hours after Thursday’s unanimous decision by a three-judge panel of the 9th U.S. Circuit Court of Appeals not to reinstate Trump’s executive order temporarily banning entry by citizens of seven majority-Muslim nations.
Trump could have quickly requested an emergency stay of that ruling from the Supreme Court in hopes of putting his temporary immigration ban back into effect. But such emergency orders are rarely granted, and the prospects were poor that the high court, divided 4-4 between liberal and conservatives, could muster the five votes needed to grant one.
The shorthanded Supreme Court will almost certainly catch the case at some point. But when, how often and under what circumstances require tough tactical and strategic choices from a Trump team that so far has lost its legal arguments repeatedly.
Underscoring the complicated, multi-front nature of the legal conflict, a Virginia-based federal judge on Friday morning heard oral argument on other challengers’ request for a separate injunction blocking Trump’s executive order.
“All of us welcome and benefit from immigration, tourism and international student travel,” California and more than a dozen other states said in a brief filed Thursday, “and all of us face concrete, immediate and irreparable harms caused by the executive order.”
The oral argument Friday morning before U.S. District Judge Leonie M. Brinkema, a Democratic appointee, came about 15 hours after the 9th Circuit had repudiated Trump with its ruling.
The executive order has irreparably injured—and continues to injure—state colleges and universities across the country, including in the . . . states, which rely on faculty and students from across the world.
Feb. 9 amicus brief from California and other states
On Friday, Trump promised to do “whatever is necessary” to keep the country safe. During a visit with Japanese Prime Minister Sinzo Abe, Trump deflected questions about possibly rewriting the executive order. But he promised he will be taking steps to provide additional security.
“You’ll be seeing that sometime next week,” he said.
Trump tweeted earlier in the day that the 9th Circuit panel had made a “disgraceful decision!” He’d posed a more ominous scenario following U.S. District Judge James Robart’s Feb. 3 decision imposing a temporary restraining order on the travel ban, tweeting that he “just cannot believe a judge would put our country in such peril” and that “the judge opens up our country to potential terrorists.”
But while Trump’s imminent-threat narrative might have initially pushed him toward an immediate Supreme Court appeal, he would have faced long odds. It takes five justices to grant an emergency stay of a lower court’s order, and that threshold is harder than ever to reach with the eight current justices split evenly among Republican and Democratic appointees.
Going to the Supreme Court right away would have stretched out decision-making for several days, as legal briefs would have to be filed and considered. Another immediate loss for Trump, while it wouldn’t have fully addressed the case for and against the executive order, would also simply have looked bad for the president.
“They don’t want a bad precedent on their side,” said Polly Price, an Emory University law professor. “If it looks like they would get a definitive ruling really limiting the president’s power here, this might not be the kind of case they want to risk that. . . . I don’t think they want to risk it on an issue like this, which seems so easy to lose.”
Once back at Robart’s Seattle courtroom, the legal challenge to the executive order by the states of Washington and Minnesota will be judged on its merits. This, too, will take some time.
The Justice Department’s brief opposing the states’ request for an injunction is due next Wednesday, with the states’ response to it due two days later. That schedule might change. After what’s likely to be further oral argument, Robart would rule.
“We are fully confident that now that we will get our day in court and have an opportunity to argue this on the merits, that we will prevail,” White House counselor Kellyanne Conway said on Fox News.
In its 29-page decision Thursday upholding Robart’s earlier temporary restraining order, the 9th Circuit’s three-judge panel said it thought the White House ultimately would lose the case. “The government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury,” the panel ruled.
While this does not mandate Robart’s ultimate decision, it does predict it.
“You don’t have to read between the lines very much to infer they think that the federal government is likely to lose,” said Michael Dorf, professor of constitutional law at Cornell Law School.
Robart’s decision will lead to another appeal to the San Francisco-based 9th Circuit, though it would be heard by a different three-judge panel from the one that ruled Thursday. Whichever side loses at that stage can then choose either to request a so-called en banc review by all active 9th Circuit judges or, perhaps more likely if it’s the government that loses, they can head to the Supreme Court.
Four justices would be required for the Supreme Court to hear the appeal. Given the stakes, that’s all but guaranteed, but then would come the actual consideration and a decision.