Justice

Here's What Happens Next in the Fight Over Trump's Travel Ban

February 6th 2017

By:
Kyle Jaeger

The legal battle over President Donald Trump's immigration order will ultimately be decided by the U.S. Supreme Court, according to constitutional law experts who think critics of the controversial order will likely prevail.

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The White House is currently appealing a federal judge's ruling that temporarily suspended the president's travel ban, which targeted refugees and citizens of seven predominantly Muslim countries. The San Francisco-based 9th Circuit Court of Appeals, meanwhile, could announce as early as Tuesday its decision on whether or not to lift the suspension of the executive order, CNN reported.

However, whatever the outcome of that appeal, the case is likely to be settled only when it hits the Supreme Court.

"I think there's a good chance that this will go up to Supreme Court — at least at this procedural stage," Adam Winkler, a professor who specializes in constitutional law and the Supreme Court at UCLA Law School, told ATTN:. "If the Trump administration loses at the 9th Circuit, as I predict they will, they're likely to appeal to the Supreme Court."

What you need to know about the case.

  • Last week, Washington's attorney general filed two actions against the order with the U.S. District Court for the Western District of Washington. Federal judge James Robart granted a motion Friday that prevents the government from enforcing key provisions of the order, lifting travel restrictions on seven Muslim-majority countries and reversing a decision to revoke visas issued to citizens of those nations.
  • The Washington attorney general's office also filed a lawsuit in the district court alleging that Trump's executive order violates constitutional protections, pertaining both to religious discrimination and due process for legal permanent residents who were caught up in the order's rollout.
  • The Department of Justice filed a motion requesting a temporary stay of the district court's ruling with the 9th Circuit Court of Appeals on Saturday. The court denied the request.

What happens next.

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Trump has questioned the district court's decision, describing Robart as a "so-called judge" in a tweet over the weekend and encouraging Americans to "blame" the judge and court in the event of a terrorist attack. Experts believe the administration will kick the case up to the Supreme Court if the appeals court doesn't rule in its favor this week.

The three-judge panel on the appeals court is accepting legal briefs from both sides of the case, and the government has until 6 p.m. on Monday to submit its documents. Because the 9th Circuit Court of Appeals is considered left-leaning — and because the legal arguments against the executive order are considered strong by experts on constitutional law — the chance of the administration prevailing is seen as low.

Even if it did win a motion to stay the district court's ruling, however, the attorneys general of Washington and Minnesota, who brought the motion and lawsuit last week, would likely request a Supreme Court appeal.

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One issue that's resurfaced concerns the Supreme Court bench, which is short one justice pending the confirmation of Trump's nominee, Neil Gorsuch.

The current ideological makeup of the court is split evenly in terms of conservative and liberal-leaning justices, but Winkler said he doesn't "predict the Supreme Court will split evenly" on this case. He thinks at least one conservative judge, such as Justice Anthony Kennedy, "will agree with almost every other court that's looked at this issue and find that there are legal problems with the travel ban."

If the case does reach the Supreme Court and splits evenly on the executive order, however, that means the lower court — in this case the 9th Circuit Court of Appeals — will "have the final word" because one needs a majority of justices in order to overturn a lower court ruling. Barring that, the ruling defaults back to the lower court decision.

"I would be surprised if all four of the court's conservative members allowed the travel ban to go into effect," Winkler said. "I think the most important thing of what happened this weekend is a showing that the courts are going to stand up to Trump — even if Congress refuses to do so."