After yesterday’s showdown over President Donald Trump’s travel ban, the burning legal question is: what happens next?
A tangle of possibilities awaits the combatants, but a shaky consensus is assembling around the prediction that the U.S. Supreme Court is unlikely to rule on the merits of the ban anytime soon.
That is the view of court blogger Josh Blackman, a professor at South Texas College of Law who has followed the litigation intensely. But even Blackman, who believes the travel ban may be legal, hedges his bet about future developments by pointing to President Trump’s “rash behavior” that could push the case to the high court even against all odds.
A panel of the U.S. Court of Appeals for the Ninth Circuit heard arguments on Tuesday in the latest round of State of Washington v. Trump.
The Trump administration has asked the panel to lift a temporary restraining order halting the ban on certain immigrants entering the United States. It was issued Friday by Seattle federal district judge James Robart, allowing affected travelers who were detained overseas to come to America. The circuit panel consisting of Judges William Canby Jr., Michelle Friedland and Richard Clifton could rule as early as Thursday.
The government has an uphill climb, if for no other reason than the fact that TROs usually cannot be appealed. The government argues that the order bears the characteristics of a preliminary injunction, which can be appealed.
The Ninth Circuit panel might just rule on that point, without making any pronouncement on the merits. Or it could base its decision on the technical question of whether the state of Washington had standing to challenge the Trump policy.
The TRO is “very preliminary and the court has no record to go on,” Blackman said, predicting that a win for the administration is unlikely.
If the government does lose, the government faces “very difficult choices,” Blackman said, echoing the views of other lawyers involved in the case who did not want to be identified.
Appealing the panel’s ruling to the Supreme Court is one of the choices, but a stay of Robart’s order would require five votes on an eight-member court—a risky burden.
But even if the government wins, the Supreme Court might not step in at this early stage of what could be a protracted legal battle with many other court rulings on the same issue popping up around the nation.
The high court could let the litigation run its course, which would also give the administration a chance to refine and issue another order or policy that might have a better chance of surviving.
Blackman said the court could also see another advantage in acting slowly. “By waiting, there is a certainty that Justice Neil Gorsuch would be on the bench, thus making it easier to get to five votes,” he said.