The first time a U.S. federal court issued a temporary restraining order against President Donald Trump’s travel ban, the government filed an appeal the next day.
After Wednesday’s court ruling against Trump’s second executive order, which temporarily suspends refugee admissions and the issuance of new visas to people from six countries, an appeal to the same San Francisco-based 9th U.S. Circuit Court of Appeals is also expected.
Trump himself said Wednesday the legal challenges will continue, beyond the 9th Circuit, if necessary.
Trump: Hawaii Judge's Ruling Against Revised Travel Ban Was 'Political'
“We are going to fight this terrible ruling,” he told supporters in Tennessee. “We are going to take our case as far as it needs to go, including all the way up to the Supreme Court. We are going to win, we are going to keep our citizens safe and regardless, we are going to keep our citizens safe, believe me.”
Back to the 9th Circuit
Wednesday’s ruling came from the U.S. District Court that covers the state of Hawaii, one of nine Western U.S. states where cases are appealed to the 9th Circuit.
In February, a three-judge panel upheld a lower court’s ruling that prohibited the government from enforcing the original executive order. The members of the panel change every month, according to a rotation, so a new appeal could be heard by a new set of judges. Their choices would again be to uphold the lower court, strike down its ruling, or send the case back for some kind of review.
Leon Fresco, an immigration attorney who served as deputy assistant attorney general for the Justice Department Civil Division’s Office of Immigration Litigation during President Barack Obama’s administration, says the focus for the appeals court will be the question of Trump’s authority to issue an entry ban.
A law enacted in 1952, the Immigration and Nationality Act, says in Section 212(f) that if the president finds that allowing any noncitizens, or any group of noncitizens, to enter the United States would be detrimental to the country, then he may suspend entry for a period of time he deems necessary.
Fresco said the District Court’s decision Wednesday did not address that authority, and that the courts could provide “much needed guidance” for the Trump administration, and for future presidents as well.
“Ultimately the court is going to have to grapple with the key question, which is, does Section 212 (f), and the combination of the fact that it’s being applied to people abroad with no ties to the United States, mean that even if the president had a discriminatory intent it still couldn’t be challenged in a court,” he told VOA via Skype.
Can the order be challenged
The next question, Fresco said, is can the order be challenged in court. Do statements by the president irrevocably taint the order, even if it is written in a way that does not specifically mention any religion.
The District Court acknowledged in its ruling Wednesday that the second version of Trump’s order does not “facially discriminate for or against any particular religion.” But it went on to say that because the countries involved are at least 90 percent Muslim, it is no leap to conclude the ban targets Islam.
A ruling at the 9th Circuit would set up a potential appeal to the U.S. Supreme Court. The Supreme Court usually has nine members, but because of the death of Justice Antonin Scalia last year, there are currently only eight justices.
Given the history of immigration decisions by those on the court, a 4-4 tie is the widely expected outcome of a challenge under the current Supreme Court. If that happened, whatever the 9th Circuit decided would remain in place, making that court’s actions even more important.
However, an appeal may also reach the Supreme Court after a Trump-appointed justice is seated, and that justice may tip the court’s ruling in the administration’s favor. Trump’s nominee to the Supreme Court, Neil Gorsuch, a federal appellate judge on the Denver-based 10th U.S. Circuit Court of Appeals, is considered a solid conservative jurist who has strong Republican support in the Senate.
James Thurber, a distinguished professor in the Department of Government at the American University, believes that seating Gorsuch may not guarantee a victory for the Trump administration on the travel ban issue.
“Even though it is going to be a conservative court if Mr. Gorsuch is confirmed, and he probably will be confirmed eventually, it will be a five to four thing (margin for conservatives), they believe in limits of power for the president.”
Same words, different president
Fresco said he believes that if an order with the exact same words as Trump’s were issued by “another president in a different context” it would be upheld in 99 percent of cases. He expects in this case the 9th Circuit would again side with the lower court’s ruling suspending the measure.
“I think they want to send the message to the president that he should not start operating under the belief that he has unlimited authority to do whatever he wants on immigration,” he said. “I think this is a message the 9th Circuit wants to send. I don’t know if that’s a message the Supreme Court wants to send, but I am quite confident that this is a message that the 9th Circuit wants to send to the president.”
Fresco added that he believes the statutory authority in question is an important tool for a president, and it is not worth potentially weakening that authority over what he called an “ill-conceived travel ban.”
“It seems so misguided from a policy standpoint. Why you would take this all the way up to the Supreme Court and potentially ruin much-needed authority for the future?”
Jim Malone in Washington contributed to this report.