With the decision today by a panel of appellate court judges to let stand a lower-court stay of President Trump’s travel ban, the big question is: Where to now?
Three judges from the Ninth U.S. Circuit Court of Appeals ruled unanimously Thursday afternoon that Judge James Robart of the Federal District Court in Seattle was justified in hitting the pause button on Trump’s executive order, which was designed to ban refugees from seven majority-Muslim countries.
We reached out to Ben Feuer, chairman of the California Appellate Law Group in San Francisco, to explore the various legal paths forward in this battle between U.S. Department of Justice lawyers representing the Trump administration and the state Attorneys General for Washington and Minnesota who first opposed the ban in court. It is beyond clear that today’s ruling won’t end the matter — as the president tweeted this afternoon, in all capital letters, SEE YOU IN COURT.
Back to Seattle
The three-judge panel — Judges William Canby Jr., a Jimmy Carter appointee, Michelle Friedland, a Barack Obama appointee, and Richard Clifton, a George W. Bush appointee, who ruled unanimously — could send the case back to Robart for more hearings. But this is less likely, given the nature of the arguments earlier this week before that panel. Both sides, notes Feuer, suggested in that hearing that they wanted the case to go before the Supreme Court. If it is sent back to Robart, the case would almost certainly come back again to the Ninth District and, theoretically, could be appealed to the Supreme Court at that point.
Stay in San Francisco, Take 1
The government could now appeal Thursday’s ruling a second time to the same panel of three judges, saying that, for example, their ruling overlooked a key fact and they should rehear arguments and reconsider their decision. But Feuer doubts that will happen because the three judges “have already considered the small number of facts presented in the case.”
Stay in San Francisco, Take 2
The government could appeal the panel’s decision to the full appeals court, which includes 29 active judges and 14 senior judges. They’d file a so-called petition for rehearing en banc, in which case 11 of the 29 active judges would be randomly selected to hear the appeal. That might include some or all of the three judges on the original panel, but it might not.
If the government goes this route, one of the 29 judges would have to formally request a vote of the entire court on whether to hear the case en banc. Judges would send memos back and forth discussing the matter before issuing their decision. Feuer calls this also unlikely, but it could happen and the appeal could be expedited given the pressing nature of the case. “But with time such an issue in this case,” he says, “I suspect that the losing party will not seek an en banc hearing.”
Proceed to the Supreme Court
This path is the most likely, even though the Supreme Court remains short-handed and could deadlock on whether to allow the Robart injunction to remain. The appeal would go to Justice Anthony Kennedy, who is assigned emergency motions that originate from the Ninth Circuit. Kennedy has a choice: He can either decide the appeal on his own or refer it to the full court to hear arguments from both sides. In a case of such national gravitas, he’ll probably chose the latter. Feuer says if Trump’s lawyers do appeal to the Supreme Court, “they’ll probably ask for an emergency stay of the Seattle judge’s nationwide injunction” that put the travel ban on hold. “It’s confusing,” he adds.
Then what?
The eight justices would probably hear the case on an extremely expedited schedule and issue an order of some kind, possibly without hearing any oral arguments. But, says Feuer, “this is all very novel and it’s tough to predict exactly what they’ll do.” He said it was also unusual for the three-judge appellate panel to hear oral arguments, given the time pressures involved, but they did. The justices could rule in a matter of days, but Feuer said it would probably take them up to two weeks to issue their order.
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They could rule in a number of ways: upholding the Seattle judge’s injunction or not; approving some parts of the judge’s stay but not others; deciding whether there were grounds for the injunction in the first place. And they could send the case back to Robart for more arguments from the two sides, which is what the Seattle judge said he wanted in the first place when he issued his injunction. Finally, they could lift the injunction while the legal battle continues and amicus, or ”friend of the court,” briefs are filed by parties on both sides of the argument.
So what if they deadlock 4-4?
That could happen, given the makeup of the Supreme Court. By the court’s policy, a tie would affirm the Ninth Circuit’s ruling, sending the two sides back to Seattle conceivably for a trial or a ruling by the judge on the merits of the case. The injunction, says Feuer, “would remain in place.”
Alternatively, some parts of Trump’s Executive Order could be deemed permissible by the courts while others are not.
What if another proceeding from another part of the country sends a similar case to the Supreme Court — maybe even one with the opposite result?
Probably won’t happen, says Feuer. “If there’s a nationwide injunction in effect from the Western District of Washington, that essentially moots other proceedings going on around the country. It’s very unlikely that a case in another district would proceed because the Supreme Court will already have addressed the same issue. So the Justice Department lawyers would have to go back and figure out a different approach, like having Trump issue a new narrower order. But to reach the Supreme Court, the appeal would have to be on an issue involving a different part of the Executive Order than what’s being argued now.”
Feuer explained that “it wouldn’t make sense for, say, Louisiana to bring the same issue before the Supreme Court because you’d just get the same results. Then again, someone might try and do that if (Trump nominee Neil) Gorsuch is confirmed because you’d now have a full court and maybe not a tie like the last time.”
