Trump faces uphill battle to overcome court’s hold on travel ban

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By Lawrence Hurley

<span class="articleLocation”>U.S. President Donald Trump faces an uphill
battle to overcome a federal judge’s temporary hold on his
travel ban on seven mainly Muslim countries, but the outcome of
a ruling on the executive order’s ultimate legality is less
certain.

Any appeals of decisions by U.S. District Court Judge James
Robart in Seattle face a regional court dominated by
liberal-leaning judges who might not be sympathetic to Trump’s
rationale for the ban, and a currently shorthanded Supreme Court
split 4-4 between liberals and conservatives.

The temporary restraining order Robart issued on Friday in
Seattle, which applies nationwide, gives him time to consider
the case in more detail, but also sends a signal that he is
likely to impose a more permanent injunction.

The Trump administration has appealed that order. The San
Francisco-based 9th U.S. Circuit Court of Appeals said late on
Saturday that it would not decide whether to lift the judge’s
ruling, as requested by the U.S. government, until it receives
briefs from both sides, with the administration’s filing due on
Monday.

Appeals courts are generally leery of upending the status
quo, which in this case – for now – is the suspension of the
ban.

The upheaval prompted by the new Republican administration’s
initial announcement of the ban on Jan. 27, with travelers
detained at airports upon entering the country, would
potentially be kickstarted again if Robart’s stay was lifted.

The appeals court might also take into account the fact that
there are several other cases around the country challenging the
ban. If it were to overturn the district court’s decision,
another judge somewhere else in the United States could impose a
new order, setting off a new cascade of court filings.

If the appeals court upholds the order, the administration
could immediately ask the U.S. Supreme Court to intervene. But
the high court is generally reluctant to get involved in cases
at a preliminary stage, legal experts said.

The high court is short one justice, as it has been for a
year, leaving it split between liberals and conservatives. Any
emergency request by the administration would need five votes to
be granted, meaning at least one of the liberals would have to
vote in favor.

“I think the court’s going to feel every reason to stay on
the sidelines as long as possible,” said Steve Vladeck, a
professor at the University of Texas School of Law.

Trump last week nominated a conservative appeals court
judge, Neil Gorsuch, to fill the vacancy, but he will not be
sitting on the Supreme Court for at least two months. Gorsuch’s
vote, if he is confirmed by the U.S. Senate, could come into
play if the case were to reach the court at a later stage of the
litigation.

Once the case proceeds past the injunction stage of the
litigation and onto the merits of whether the order is legally
sound, legal experts differ over how strong the government’s
case would be.

Richard Primus, a professor of constitutional law at the
University of Michigan Law School, said the administration could
struggle to convince courts that the ban was justified by
national security concerns.

The Supreme Court has previously rejected the idea that the
government does not need to offer a basis for its actions in the
national security context, including the landmark 1971 Pentagon
Papers case, in which the administration of President Richard
Nixon tried unsuccessfully to prevent the press from publishing
information about United States policy toward Vietnam.

“The government’s argument so far in support of the order is
pretty weak,” Primus said.

Jonathan Adler, a professor at Case Western Reserve
University School of Law, said the administration has legal
precedent on its side, with the courts generally deferential to
executive action on immigration.

However, he said it is unusual for the courts to be asked to
endorse “a policy that appears to have been adopted in as kind
of haphazard and arbitrary way as this one appears to have
been.” (Additional reporting by Tracy Rucinski and Nathan Layne)



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