President Trump's legal options in travel ban case

US President Donald Trump said during a surprise visit with reporters aboard Air Force One en route to Florida that he was considering "a brand new order" that could be issued as soon as Monday (Feb 13) or Tuesday. VIDEO: REUTERS
Shortly after the US appeals court's decision on Thursday (Feb 9) to uphold the blocking of his travel ban, US President Donald Trump vowed to fight on.
Shortly after the US appeals court's decision on Thursday (Feb 9) to uphold the blocking of his travel ban, US President Donald Trump vowed to fight on.PHOTO: BLOOMBERG

WASHINGTON (NYTIMES) - Shortly after the US appeals court's decision on Thursday (Feb 9) to uphold the blocking of his travel ban, President Donald Trump vowed to fight on.

"SEE YOU IN COURT," he wrote on Twitter.

But which court?

Here is a look at Mr Trump's options:

Two roads to the US Supreme Court

1. File an emergency application to the Supreme Court, asking the justices to stay the trial court's ruling blocking his executive order suspending travel from seven mostly Muslim countries

This is the only way for him to try to obtain a very fast ruling. Since Mr Trump has said the court ruling against his travel ban poses an immediate threat to the nation's security, he might be expected to pursue this strategy.

If he does, the Supreme Court could act within days. Under its usual practices, it would not hear arguments and would issue a very brief order announcing the outcome with little or no legal reasoning.

 
 
 

Richard J. Lazarus, a law professor at Harvard, said the justices should take a different approach in this case if the administration files an emergency application, recalling that the court heard arguments in very short order when the Nixon administration in 1971 unsuccessfully sought to block The New York Times and The Washington Post from publishing a secret history of the Vietnam War.

"The court should receive briefs from both sides, hear oral argument, deliberate among themselves in person, and then decide," Prof Lazarus said. "They can do so quickly, as they have done in the past, for example in the Pentagon Papers case."

Many legal experts say Mr Trump's chances of success at the Supreme Court, which for a year now has had just eight members, are slim. A 4-4 tie would leave the appeals court ruling in place. It would take five votes to overturn the ruling, and it is unlikely that Mr Trump could obtain the vote of any of the court's four more liberal justices.

2. File a more conventional petition seeking review of the appeals court's ruling

This would be more orderly, and it would allow the parties to file detailed briefs attacking and defending the appeals court's reasoning.

It takes only four votes for the Supreme Court to agree to hear a case this way. Under its ordinary practices, though, a decision on whether to hear the case would probably not come until April, and arguments would not be scheduled until October.

By then, the Supreme Court may be back at full strength if Mr Trump's nominee, Judge Neil Gorsuch, is confirmed.

Two options in the Appeals Court

1. File a brief asking for a larger panel of the court to rehear the case

On Friday (Feb 10), the 9th US Circuit Court of Appeals in San Francisco asked the two sides to file briefs setting out their positions on whether a larger panel of the court should rehear the case.

If the administration were to do that and the 9th Circuit Court does agree, the case would ordinarily be heard by an 11-member panel, including the circuit's chief judge and 10 judges chosen at random. The court has a liberal reputation, but its judges have a wide variety of ideological leanings, and it is at least possible that such a panel would rule for Mr Trump.

But this strategy also requires time, and the case would still probably end up in the Supreme Court.

2. Continue to litigate the case before the three-judge panel

The panel had set a schedule for submitting briefs in the underlying appeal (the question decided on Feb 9 was whether to stay the trial court order and not whether it was correct) The last of those briefs is due on March 29.

More proceedings in the trial court  

Seattle Judge James L. Robart, who entered the temporary restraining order, has also set a briefing schedule on whether he should make his ruling more permanent by issuing a preliminary injunction. The last of those briefs is due on Feb 17.

If the administration were inclined to submit additional evidence justifying the ban, the trial court would be the place to do it. But it is not clear whether there will be further proceedings before Judge Robart on whether he should issue a preliminary injunction.

On Feb 9, just after the 9th Circuit's ruling, a lawyer for Washington state wrote a letter to Judge Robart saying the appeals court had effectively entered the preliminary injunction.

Many federal trial judges around the country have also addressed aspects of the travel ban, and Mr Trump won a notable victory in Boston last week. But unless the 9th Circuit's ruling is overturned or modified, the nationwide injunction issued by Judge Robart will stay in place.

Starting from scratch

The Trump administration could issue a narrower executive order on a travel ban. It would probably be promptly challenged in court.