What's next for Trump's travel ban?
The Trump administration filed notice Friday that it plans to appeal a temporary restraining order issued this week in Maryland, and it's widely expected to do the same in Hawaii. But no matter the outcome before the federal appeals courts, experts agree that the matter will ultimately be decided by the Supreme Court.
"It's a matter of extreme national importance and implicates the scope of executive authority and important constitutional principles," says Cristina Rodriguez, a professor at Yale Law School specializing in constitutional and immigration law. "Even if the courts are all uniform, the Supreme Court will want to hear it."
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There are some variables along the way – most notably, whether Congress confirms Judge Neil Gorsuch to fill the vacancy on the Supreme Court before the justices hear arguments in the case.
Here's what's happened so far and what lies ahead:
What happened in the rulings this week?
The executive order was scheduled to take effect on Thursday at 12:01 a.m. Eastern time. Hours before it did, U.S. District Judge Derrick Watson in Hawaii issued a temporary restraining order halting two of its core provisions: a 120-day suspension of the U.S. refugee program and a 90-day halt on entries by most citizens of six majority-Muslim nations: Iran, Libya, Somalia, Sudan, Syria and Yemen.
On Thursday, U.S. District Judge Theodore Chuang in Maryland issued another restraining order that also stopped the 90-day provision.
Other aspects of the executive order, such as a sharp reduction in the number of refugees allowed to resettle in the U.S., were allowed to take effect.
What are the main arguments?
Hawaii, which won the first injunction, has argued that the executive order amounts to religious discrimination against Muslims, particularly in light of statements by the president and his advisers about seeking at least a temporary ban on allowing Muslims into the U.S.
It has also contended that the travel restrictions harm its universities, its business and tourist economy, and its local residents. A local imam, who's mother-in-law lives in Syria and would appear to be affected by the travel ban, also joined the state's lawsuit.
The case in Maryland was brought by two refugee support and advocacy groups, as well as a handful of individuals. They, too, argued that the executive order discriminates against Muslims. They also contended that it would harm people who live in the U.S. – even if they themselves are not directly affected by the restrictions – because it would prevent family members from visiting.
The Trump administration, by contrast, has contended that the order amounts to no more than a pause to review immigration security screening procedures, an act they argue is well within the scope of the president's authority. Justice Department lawyers vigorously argued that the order is not discriminatory and that it was motivated by national security concerns.
What's the government going to do?
With the restraining orders in place, the Trump administration had three options: File an immediate appeal in the 4th and 9th circuits and seek hearings on an emergency basis as early as possible; decide not to appeal, let the restraining orders remain, and eventually go to trial on the merits of whether the executive order is legal; or withdraw and either start over or give up.
No one expected the third option. And after Trump's fiery rhetoric at a rally in Nashville, Tennessee, on Wednesday night, few, if any, expected the second. And with the filing Friday in the case in Maryland, the Justice Department is signaling it plans to fight on.
An appeal to a circuit would be heard by a panel of three judges, as was the Justice Department appeal of the Trump administration's original order restricting travel. In that case, the 9th Circuit upheld the district court judge's ruling and the administration opted to rewrite its order. If this order is similarly decided in the appeals courts, the administration could ask the circuits for "en banc" hearings – rehearings of the cases before the full complement of circuit court judges – or appeal directly to the Supreme Court.
Will Gorsuch be nominated before either case reaches the Supreme Court?
Probably. Confirmation hearings begin next week, and Gorsuch is expected to be confirmed, meaning he will likely be on the bench in as soon as a month – more than enough time for the arguments over the restraining orders to wind their way to the Supreme Court.
That said, there is a chance that the appeals – if sought and granted on an emergency basis by the appeals court and then the Supreme Court – could arrive at the high court earlier, but it's not likely. And even if it did, the justices might not be eager to take up a case of this magnitude with the potential of a deadlock.
"If the justices split 4-4, that could have negative repercussions for the court and its credibility, or for the nation for it to be seen as unresolved," Rodriguez says.
So if Gorsuch gets confirmed in time and the case makes its way to the Supreme Court, what is expected to happen?
It could be a nail-biter, but opponents of the travel ban face some hurdles.
For one, the Supreme Court has often been reluctant to second-guess the president's decisions in immigration.
"Traditionally courts have been deferential to presidents and Congress on immigration matters because immigration involves national sovereignty and foreign relations and terrorism concerns," even when there are First Amendment concerns like religious discrimination, says Stephen Yale-Loehr, professor of immigration law practice at Cornell Law School.
In the 1972 case in Kleindienst v. Mandel, for example, the Supreme Court rejected arguments that the government's decision to bar a Belgian Marxist from entering the U.S. for a speaking tour violated the First Amendment rights of U.S. citizens who would have met and spoken with him. The court in that case concluded that the executive branch had the authority to refuse an individual's entry to the U.S.
Trump's executive order, however, is far larger in scope. And while Gorsuch's expected confirmation will add another conservative vote to the court, that doesn't make the case an easy win for the administration.
"This is such new territory and such broad use of that power – it's likely [the court will side with the administration], but it's not a slam dunk," says Phil Torrey, a lecturer at Harvard Law School who specializes in criminal and immigration law.
There's also the issue of standing – essentially, whether the groups and individuals who brought the challenges are eligible to do so based on how they'd be affected by the executive order. For instance, Hawaii's argument that its economy would be harmed by the travel restrictions could be seen as speculative by a higher court, and many of the claims brought by individuals relate not to their ability to travel but their family members' admissibility to the U.S.
"The standing issue is really interesting and a potential land mine," Rodriguez says. "That's a way the court could get rid of the case without addressing the trickier constitutional question."
Finally, the decisions by Judges Watson and Chuang in Hawaii and Maryland drew heavily from remarks that Trump and his associates made both before and after the election about Muslims and whether the revised travel ban would be substantially different from the first. The justices could decide to give those statements less weight, seeing them less as policy statements than off-the-cuff remarks.
For example, a dissent written by members of the 9th U.S. Circuit Court of Appeals over whether a full en banc panel of the court should rehear arguments on Trump's original travel ban – frozen since Feb. 3 – argued that the statements were not relevant.
"Context really matters, and these statements are really relevant to what the government's intent was with the order, but it would worry me that speech made in the political arena in a fashion could constrain the executive, because hyperbolic things get said, so holding the president to too tight a standard in relation to his speech could potentially be problematic in the future," Rodriguez says.
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