On February 9 the Ninth Circuit refused to stay a district court’s temporary restraining order disallowing the President’s travel ban from going into effect. The executive order prevents people from seven predominately Muslim countries from entering the United States for 90 days.
Washington and Minnesota sued President Trump claiming their public universities are harmed because students and faculty of the affected countries cannot travel for research, academic collaboration, or personal reasons. The residents of cities and counties and their families have been affected as well by this executive order.
The government argued that the President has “unreviewable authority to suspend admissions of any class of aliens.” The Ninth Circuit disagreed stating: “There is no precedent to support this claimed unreviewablity, which runs contrary to the fundamental structure of our constitutional democracy.”
The Ninth Circuit agreed with the district court that the states are likely to succeed on the merits of their claim that the executive order violates the due process rights of lawful permanent residents, non-immigrant visa holders, and refugees. More specifically, the executive order provides no notice and hearing before restricting a person’s right to travel and “contravenes the procedures provided by federal statute for refugees seeking asylum.”
Technically speaking, no court has yet ruled on the merits of this case—instead the courts have only temporarily prevented the executive order from going into effect based on their view the government is likely to ultimately lose. The purpose of a temporary restraining order is to stop a likely unlawful activity until full briefing can occur to determine if unlawful activity is in fact occurring.
President Trump tweeted in response to this decision “SEE YOU IN COURT.” So we have every reason to believe the litigation in this case will continue. So what are the President’s options?
A run of the mill case would now go back to the district court where the legal issues would be fully briefed. The district court would then issue an opinion determining definitively whether the executive order is unconstitutional. That ruling could then be appealed back to the Ninth Circuit and ultimately the U.S. Supreme Court.
President Trump has two other options however.
First, he can ask the U.S. Supreme Court to stay the district court’s temporary restraining order while the case is being fully briefed at the district court. This request would go to Justice Kennedy who overseas emergency appeals from the Ninth Circuit. Justice Kennedy could rule on this issue alone or ask the entire Court to rule (which is probably more likely). Five votes from the current eight Justices are needed to temporarily reinstate the ban. Amy Howe of SCOTUSblog notes: “If the government can’t get those votes, which could be difficult given the temporary and relatively narrow nature of the court’s ruling, the ban could remain on hold while its full merits are litigated in the lower courts.”
Instead of going directly to the Supreme Court President Trump could ask the entire Ninth Circuit to stay the district court’s temporary restraining order while the case is being briefed at the district court.
Two other technical points about this case that could affect whether and how it is litigated are noteworthy. First, the travel ban only lasts for 90 days so at some point (very soon) the litigation in this case could be moot—unless the President extends the travel ban. Second, President Trump could modify the executive order to cure the due process problems the Ninth Circuit pointed out. However, this might not be enough. Washington and Minnesota raised numerous claims in addition to due process which the Ninth Circuit did not rule on for the sake of expediency. However, the Ninth Circuit went out of its way to describe, but not rule on, the states’ religious discrimination claim—at least implying the court thought this claim might be valid as well.