The Trump administration is now 0-for-2 in the legal battle over its executive order banning people from seven majority-Muslim countries, and nearly all refugees, from entering the United States. And it’s reportedly not sure whether it’s going to appeal the latest ruling, from a 3-judge panel on the Ninth Circuit Court of Appeals, to the Supreme Court.
If Trump doesn’t appeal, that mean the ban is dead? Hardly. The case hasn’t even been resolved at the lowest level of the federal court system. And the 9th Circuit is considering reopening it. This is going to be a longer legal battle.
Here’s what’s happened so far and what’s next.
- On Friday, District Judge James Robart issued a temporary restraining order — a short-term, preliminary order — preventing the government from enforcing the most controversial parts of President Trump’s refugee and visa ban.
- The federal government asked the Ninth Circuit Court of Appeals to place a stay on Robart’s order while they appealed.
- The Ninth Circuit rejected the federal government’s request.
- Now it’s up to the Trump administration to decide whether it wants to ask the Supreme Court to grant the request the Ninth Circuit rejected.
- Justice Anthony Kennedy (who’s the justice in charge for the Ninth Circuit) would have to decide whether to take the case, or to ask all eight members of the Supreme Court to consider it. For such a big case, he’d probably do the latter.
- That would happen in a matter of days or even hours.
- To grant the stay, the Court would need to get five justices — meaning at least one liberal on the Court would have to join the conservatives in siding with the Trump administration.
- And even if that happened, the stay would only be in place until the case advanced at either the district court or the court of appeals level. Because it’s still in progress at both.
- In the district court, Robart still has to decide whether to issue a preliminary injunction — an indefinite hold — on the executive order.
- What complicates this is that the Ninth Circuit, in its Thursday ruling, basically agreed to treat the temporary restraining order as a preliminary injunction. In light of that, Judge Robart has asked both sides to tell him by Sunday, February 12 whether they want to have a hearing on a preliminary injunction, or just treat the current hold as an injunction and move on.
- Meanwhile, a judge on the 9th Circuit (presumably not one of the three judges who just ruled in the case) has asked to hold a vote of all 9th CIrcuit judges on whether to reconsider the ruling that the panel just made on Thursday, and reopen the question of whether to stay the temporary restraining order.
- Both sides in the case are supposed to submit briefs by February 16, and all 9th Circuit judges will subsequently vote on whether to reopen the question.
- If the 9th Circuit votes to rehear the case, an 11-member panel of judges will consider whether to stay Judge Robart’s order.
- If the administration actually wins a round, and the ban goes back into effect, another federal judge could enjoin it as a result of a different lawsuit (and there are plenty to choose from).
- Ultimately, some court will finally have to rule on the merits of the executive order itself.
- That ruling will probably be appealed back up to the Ninth Circuit and then to the Supreme Court.
- But an injunction, unlike the temporary restraining order in place now, doesn’t have to be resolved immediately — it isn’t an emergency order.
- So it will likely take months for the preliminary injunction to make it back up to the Supreme Court...
- ...at which point, the Court will probably have seated nominee Neil Gorsuch.
- Gorsuch could give the conservative wing of the court a 5-4 majority to side with the Trump administration. Or he — and maybe even other conservative justices — could decide to strike a blow for the judicial branch against the Trump administration’s expansive theory of executive power.
- It’s possible that none of this will matter. President Trump has said that he could respond by simply issuing a new executive order in place of the one that’s been put on hold.
- But while it’s possible to improve some of the legal weak points in the existing executive order, the Trump administration won’t be able to avoid a challenge on the grounds that it was originally intended to be a “Muslim ban.” And so, while the Trump administration could be in stronger position under a new order, it won’t be able to stop the court battle entirely.