A federal appeals court has handed a resounding victory to Washington state and Minnesota in their challenge of President Donald Trump’s travel ban, finding unanimously that a lower court ruling suspending the ban’s enforcement should stay in place while the case continues.
The 3-0 decision from the 9th Circuit Court of Appeals sided with the states on nearly every issue presented.
President Trump had earlier tweeted “SEE YOU IN COURT” after the ruling came out Thursday prompting a sharp retort from Washington Governor Jay Inslee: “Mr. President, we just saw you in court, and we beat you.”
However, legal scholars who reviewed it say there’s little chance the Justice Department could succeed in any immediate appeal to the US Supreme Court, though that won’t necessarily stop the administration from trying.
“This victory shouldn’t lead to complacency,” said Nihad Awad, executive director of Council on American-Islamic Relations, a Muslim civil rights and advocacy group headquarted in Capitol Hill that guides policy solutions to the American government.
Here’s a look at the legal issues in the court’s ruling and what comes next.
What does the ruling mean?
For now, it means refugees and people from seven majority-Muslim nations identified in the president’s surprise Jan 27 executive order can continue entering the country. Travelers from those countries won’t be detained, or put back on planes heading overseas, and there won’t likely be more protests jamming the nation’s airports as there were after Trump issued the surprise order.
But the executive order isn’t dead; it is just not being enforced while the courts debate its legality.
The federal government has 14 days to ask the 9th Circuit to reconsider Thursday’s decision. It could also file an emergency appeal with the US Supreme Court, which would go to Justice Anthony Kennedy for referral to the rest of the court.
Rory Little, a former Supreme Court clerk who teaches at the University of California Hastings College of the Law, doesn’t think that’s such a good idea.
In addition to seeking to overturn a reasoned decision, he said, Trump would be facing Chief Justice John Roberts, who just wrote an annual report in which he raved about his district court judges. The president repeatedly insulted the Seattle judge who ruled against him, in addition to the appeals judges who followed suit.
“I think Kennedy and Roberts are seething about the president insulting their judges,” Little said. “If they go to the US Supreme Court, they risk getting a serious adverse ruling.”
A liberal court?
Many conservatives denounced the ruling. The response of Republican Senator Tom Cotton of Arkansas was emblematic: He called it misguided and wrote off the court it came from as “the most notoriously left-wing court in America.” While the 9th Circuit certainly has a lefty reputation, based in part on the long tenure of the many liberal judges that Democratic President Jimmy Carter appointed, legal scholars say the label is less deserved than it used to be. Two of the judges on the panel that made the ruling are Democratic appointees, while one, that Judge Richard Clifton, was appointed by President George W Bush.
Carl Tobias, a law professor at the University of Richmond Law School, said Clifton’s decision to join the opinion should allay any concerns that it was motivated by politics instead of the law. That should make the government think twice before going to the Supreme Court, he said.
During oral arguments Tuesday, Clifton “was asking the best questions that might lean toward the government, but even he wasn’t persuaded on the law or the facts, so that makes it really tough for the government,” Tobias said. “I don’t think they’re going to be well-received at the Supreme Court for all kinds of reasons, but mainly because this is a reasonable decision. The precedents are there, they’ve weighed the issues, and even Clifton signed it.” -AP