clock menu more-arrow no yes mobile

Filed under:

Trump just lost his best chance to avoid a Supreme Court battle over the travel ban

The temporary hold has been turned into an indefinite hold.

Syrian Refugee Family Arrives In U.S. As Immigration Ban Is Debated In Court Photo by Scott Olson/Getty Images

The Trump administration seemingly can’t win the court battle over its attempt to temporarily ban all refugees and people from six majority-Muslim countries from entering the US.

On Wednesday night, Judge Derrick K. Watson of the District of Hawaii (part of the Ninth Circuit) extended his temporary hold on the ban into a preliminary injunction — putting the executive order on ice until the court case is fully resolved.

The ruling doesn’t change the status quo. The executive order was already on hold, meaning it can’t be carried out, and now it’s just staying on hold. And the court ruling still isn’t touching the merits of the executive order — no court has formally struck down Trump’s travel ban.

But the judge’s decision came in yet another strongly worded ruling smacking around the Trump administration for revamping the legal language of the executive order to scrub away any implication of Islamophobic animus while still making political statements to winkingly acknowledge their real goal wasn’t going to change. “The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has,” Judge Watson declared.

Worse for the administration, the new ruling all but forecloses any possibility that the executive order would go back into effect without reaching the Supreme Court.

The administration’s outlook in this court battle was already bad; it’s gotten worse.

The new ruling doesn’t change anything, it just reduces the administration’s options

To understand the ruling Watson made Wednesday night, you have to bear in mind the differences between three types of court ruling — each one more permanent than the last.

Court battles take a long time to resolve, and by the time a judge formally strikes down an unconstitutional law, a lot of damage might have already been done. So a judge has the option of issuing a preliminary hold on the law, if he or she thinks there’s a good chance it’ll get struck down once the case finally does come to a final decision.

The quickest way to do that is a temporary restraining order. That’s what Watson issued against the travel ban on March 15.

But a temporary restraining order is only supposed to last a couple of weeks. It’s supposed to grant enough time for the judge to do another round of briefs and hearings, and then issue a more considered decision about whether to keep the provision on hold indefinitely while the case works its way through the courts. That indefinite hold is called a preliminary injunction, and a judge in the Western District of Maryland (part of the Fourth Circuit) has already issued one against part of the executive order.

With two separate courts ruling against the travel ban, the administration’s only hope to get the ban back into effect without Supreme Court intervention was for both of those rulings to be overturned — or for the Maryland injunction to be overturned and Judge Watson to decide not to extend his temporary order into a preliminary injunction.

The first option wasn’t likely. The Ninth Circuit is famously liberal, and it’s the same court that put the first version of the travel ban on hold. So the administration’s last hope was Watson.

On Wednesday night, Watson did exactly what the administration hoped he wouldn’t. He issued a preliminary injunction covering both the section of the travel ban temporarily banning people from particular countries and the part temporarily banning refugees.

Trump will have to take this to the Supreme Court (or give up)

The best-case scenario for the administration, at this point, is for the Fourth Circuit to overturn the Maryland judge’s order and rule in Trump’s favor. That won’t put the travel ban into effect — Judge Watson’s Ninth Circuit hold will still be in place — but it’ll create a “circuit split”: a disagreement between two appeals courts on a point of law.

That doesn’t just make it virtually certain the Supreme Court will take up the case — something it would already be likely to do given the high profile and high stakes, but would be even more likely if there were a circuit split involved — but it would actually give the Trump administration a court ruling on its side.

The Department of Justice appeared to know this. It’s been fighting to speed up the court process in the Fourth Circuit, on the East Coast, while slow-walking the case in the Ninth Circuit on the West Coast — in the hopes that it could avoid any more smackdowns by West Coast judges that might influence the Fourth Circuit’s judgment.

But Wednesday’s ruling was just such a smackdown. And while the Ninth Circuit Court of Appeals doesn’t have to uphold Watson’s injunction, it’s not unreasonable to assume it will. It put the initial travel ban on hold, and its lower-court judges haven’t seen much difference between the old ban and the new one.

At this point, the only way the Trump administration is going to get the travel ban into effect is to get the Supreme Court to rule in its favor. And the only question is whether it’s going to do it with different courts of appeals having ruled on opposite sides — with the Fourth Circuit siding with the president, and the Ninth Circuit with the challengers — or whether it’s going to get a case where the Trump administration has been knocked around by judges from, literally, coast to coast.

The judicial branch vs. Donald Trump

The bad news for the administration is not just the fact that judges are ruling against them; it’s the way they’re doing it. Each ruling has been more strongly worded than the last — more and more firm that President Trump and his administration started out trying to discriminate against Muslims, and more and more mocking of their attempts to “sanitize” their desires by creating a policy that, on its face, has nothing to do with religion at all.

Judge Watson’s initial ruling was no exception. And his Wednesday ruling is even more fiery:

where the “historical context and ‘the specific sequence of events leading up to’” the adoption of the challenged Executive Order are as full of religious animus, invective, and obvious pretext as is the record here, it is no wonder that the Government urges the Court to altogether ignore that history and context. The Court, however, declines to do so. The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has.

But Watson’s ruling isn’t just a declaration that he’s offended. It’s also an attempt to persuade other judges — including in the Fourth Circuit and at the Supreme Court — that the administration doesn’t have a leg to stand on here.

There’s an irony here. The case against the travel ban is based, in large part, on statements made by President Trump and his advisers (on the campaign trail, before being inaugurated, and throughout his presidency) that are, to put it delicately, less subtle than the wording of the executive order itself. Take Rudy Giuliani’s statement after the initial travel ban came out saying that “When [Mr. Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’”

Watson is discussing, essentially, a paper trail. But in their opinions, Watson and the other judges who’ve ruled against the ban are building a paper trail of their own, a litany of judicial opposition to the travel ban in particular and the Trump administration in general. The hope is that by the time the case gets to the Supreme Court, the justices will weigh the courts’ paper trail heavily — or that the Trump administration will get buried by it, and will give up the dream of a ban entirely.

Sign up for the newsletter Sign up for Vox Recommends

Get curated picks of the best Vox journalism to read, watch, and listen to every week, from our editors.