Three federal appeals court judges on the West Coast dealt President Donald Trump a critical blow last week when they refused to reinstate his controversial executive order barring refugees and citizens of seven Muslim-majority nations from entering the country. Their ruling means that – at least for the foreseeable future – people can travel as they could before the ban existed.
How long that will last, though, remains an open question – largely dependent on what the administration decides to do in and out of court. Here are the four options it is considering.
1) Rewrite the order
Trump said himself last week that he’s considering rewriting his ban, even as he predicted success in court. He said the revisions might include “new security measures,” though he did not offer any specifics.
Given the ruling of the three-judge panel with the U.S. Court of Appeals for the 9th Circuit, Trump would likely have to change his order top-to-bottom to pass legal muster. He could make clear that it no longer applies to green-card holders – who probably have the strongest case to sue in U.S. courts – or he could craft an order that applies only to people who have not yet applied for visas. But the three-judge panel said even those modifications would not necessarily make them change their minds, because such changes would not help U.S. citizens who “have an interest in specific noncitizens’ ability to travel to the United States.”
Importantly, Trump’s ban was mostly designed to be temporary: 90 days for citizens of Iraq, Iran, Somalia, Sudan, Yemen and Libya, 120 days for refugees from everywhere, and an indefinite suspension on citizens of Syria. In the meantime, the administration was supposed to be looking at how to improve vetting procedures. It’s possible Trump could sign an order that lays out those vetting procedures and declares the travel ban is no longer necessary. Provided those procedures are legal, that would probably be his best bet for dodging litigation – though it’s hard to imagine how officials could have come up with the new measures so quickly. The executive order was only signed on Jan. 27.
2) Play for a legal win in the long-run
The three-judge panel’s ruling – while undeniably important – was not the last word on whether Trump’s order can pass constitutional muster. In fact, the judges noted they were taking no position on whether the order ran afoul of the Constitution and discriminated against Muslims. When they handed down their ruling, they actually set a schedule for a full briefing on the matter, with the last filing due on March 29.
The Justice Department, which is representing the Trump administration, could simply choose to fight it out in the appeals court and in the various courthouses across the country where similar lawsuits have been filed. They might have better success with courts addressing the issues more squarely.
The Justice Department lawyers had an uphill battle with the three-judge panel in the 9th Circuit. A lower-court judge had already suspended the ban, and they had to convince the panel that national security interests necessitated that they immediately lift the suspension. In the long run, they would likely only have to prove that there was a rational basis for Trump imposing his order and that it was not meant to discriminate against Muslims for their religion.
A long-term win, though, might be more symbolic than practical. By the time the courts finally decide squarely on the issues, the ban will possibly have expired. And it’s hard to square how the administration could acquiesce to that given the president’s assertions on Twitter about the short-term danger of the ban being frozen.
Because the ban was lifted by a judge, many very bad and dangerous people may be pouring into our country. A terrible decision
3) Try to get the full appeals court to weigh in
Without the administration doing anything, a judge on the U.S. Court of Appeals for the 9th Circuit asked that the court consider whether it should reconsider the three-judge panel’s ruling on an “en banc” basis. That is where a bigger collection (in the 9th Circuit, it’s the chief judge and 10 others) take arguments and then decide whether to uphold or overturn the panel’s decision.
The Justice Department and the states of Washington and Minnesota, which are suing over the ban, have until Thursday to file briefs on whether they think the matter should be considered en banc. After that, the appeals court judges will vote on whether to rehear the case. If they decide to hear it, an oral argument will be scheduled.
Taking this route would not preclude the administration from playing for the win in the long-run, though it might slow that process down. Justice Department lawyers seem to at least be considering it, as they asked a U.S. District Court judge in Washington Monday to postpone his own proceedings until there was some action from the 9th Circuit.
4) Go to the Supreme Court
The Justice Department could still rush to have the Supreme Court intervene and reinstate the ban in the short term. Not long after the 9th Circuit panel issued its ruling, Trump seemed to preview that option, tweeting, “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”
White House Chief of Staff Reince Priebus said Friday that a Supreme Court bid is still on the table, moments after another White House official indicated otherwise.
That said, it’s looking increasingly unlikely.
For starters, the Justice Department let the entire weekend and most of Monday pass without asking the Supreme Court to intervene. They would, of course, need time to prepare a request to the nation’s highest court, but each day that passes shows their willingness to slow things down and allow the ban to remain frozen.
Justice Department lawyers on Monday also indicated they wanted to see whether the 9th Circuit would hear the case en banc before announcing what action they thought was appropriate in a lower court. That would seem to be an indication they do not intend to take the case to the Supreme Court – at least not until they see whether the 9th Circuit will hear the case en banc.
The Supreme Court now has only eight members, and it is seen as being ideologically split 4 to 4. If the Justice Department were to rush to them now and get a tie, that would keep intact the appeals court ruling and effectively hand the Trump administration another loss.
(c) 2017, The Washington Post · Matt Zapotosky