Ninth Circuit ruling: Why it doesn't signal end of road for Trump travel ban
Update: This story was updated at 6:14 p.m.
Within minutes, the unanimous ruling by the Ninth Circuit Court of Appeals to continue blocking President Trump鈥檚 temporary travel ban was being both hailed and excoriated.
The legal language left no doubt. It was a major blow. The court ruled decisively against the White House.
But Mr. Trump was undaunted. 鈥淪ee you in court,鈥� Trump within minutes of the ruling. 鈥淭he security of our nation is at stake!鈥�
Friday night, White House chief of staff Reince Priebus told The Washington Post and other outlets that the White House is 鈥渞eviewing all of our options in the court system,鈥� including possibly going to the United States Supreme Court.
To be sure, Thursday's ruling was significant. But the reality is is relatively narrow in its scope. While it continues to block implementation of Trump鈥檚 executive order, it did not rule on the merits of the challenge. That will come later. And that decision, even critics of the executive order point out, may be very different.
鈥淭he opinion leaves a lot of questions unanswered, and doctrinally I think there are some problems with the decision that may be addressed,鈥� says Jonathan Adler, a professor at Case Western University School of Law, 鈥渂ut it鈥檚 very significant.鈥�
鈥淚鈥檓 not surprised by outcome, and I鈥檓 not surprised that the court tries to adopt a very narrow holding in a necessarily preliminary opinion,鈥� he adds, though 鈥淚鈥檓 not sure the court succeeded in issuing an opinion that鈥檚 as narrow as they tried to do.鈥�
For now, the ruling may carry more symbolic than legal significance. With a flurry of the president鈥檚 executive orders heading to court, and with Trump personally attacking the judiciary, the ruling represents an important marker, wrote Steve Vladeck, a law professor at the University of Texas School of Law who co-authored a friend-of-the-court brief supporting Washington and Minnesota鈥檚 challenge, .
In keeping the temporary restraining order (TRO) in place, he added, 鈥渢he 9th Circuit reaffirmed not just the independence of the courts, but the reason for that independence 鈥� to ensure that government claims of necessity are subject to dispassionate, sober analysis.鈥�
The president鈥檚 executive order bars citizens of seven Muslim-majority countries from entering the United States for 90 days, suspends entry for all refugees for 120 days and for Syrian refugees indefinitely. Its signing led to chaos and confusion at airports around the world, protests around the country, and widespread litigation in the courts. Many experts have criticized the order as poorly written and implemented on the ground.
Dozens of lawsuits have been filed challenging different parts of the executive order, but the case before the Ninth Circuit 鈥� brought by the states of Washington and Minnesota 鈥� has become the flagship suit.
No precedent for 'unreviewable' authority
Top of mind in the court鈥檚 opinion was the Trump administration鈥檚 argument that the order is 鈥渦nreviewable鈥� by the courts, given Trump鈥檚 national security authority.
鈥淭here is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,鈥� the judges wrote.
The Ninth Circuit also made comments suggesting that sloppy drafting and implementation of the order, and Trump鈥檚 public comments during the presidential campaign about a 鈥淢uslim ban,鈥� could weigh against the government.
Specifically, the judges highlighted the confusion over whether the order applied to lawful permanent residents from the seven countries. The government said the point was moot because the administration听on those residents days after the order went into effect.
The judges responded that they 鈥渃annot rely鈥� upon that contention in part because of 鈥渢he Government鈥檚 shifting interpretations of the Executive Order.鈥�
鈥淭hings like lawful permanent resident [issues] should have been anticipated, and should have been taken care of beforehand,鈥� says Professor Adler.
鈥淭he administration could not have done a better job of trying to lose a potentially winning legal hand,鈥� he adds. 鈥淔rom the way it was implemented, to the way the administration鈥檚 tried to address the problems in it, to the way the administration has continued to talk about it during litigation.鈥�
The court also suggested that past comments from Trump and his advisers about implementing a 鈥淢uslim ban鈥� could be pertinent, saying that evidence 鈥渂eyond the face of the challenged law may be considered.鈥�
When it comes to claiming that a facially neutral order 鈥� which the executive order is 鈥� has, or could have, a discriminatory impact, past statements made by political officials are usually fair game. What the government is claiming is that this case is different, because most of those statements were made while Trump was still a candidate.
The 9th Circuit has said it doesn鈥檛 make a difference, but other courts could rule another way.
鈥淭he line to me is utterly hazy,鈥� says Steven Schwinn, a professor at the John Marshall School of Law in Chicago. 鈥淚 think the judges or justices deciding this are going to have a really hard time distinguishing between statements [Trump鈥檚 team] made as a candidate and statements made as an official.鈥�
Unanswered questions remain
Indeed, several fundamental questions about the executive order鈥檚 legality and unconstitutionality remain unanswered.
The opinion, for example, never cites a key statute the government is using to validate Trump鈥檚 order 鈥� a statute in the Immigration and Nationality Act passed by Congress in 1965.
鈥淭hat鈥檚 a pretty big omission over 29 pages,鈥� wrote Benjamin Wittes, a senior fellow at the Brookings Institute, in a While Mr. Wittes writes that he believes decision to uphold the TRO is correct, he adds, "It鈥檚 worth emphasizing that the grounds on which this order was fought are not the grounds on which the merits fight will happen.鈥�
Furthermore, the judges took arguably broad legal views of certain issues.
Some of the court鈥檚 writings on Fifth Amendment guarantees of due process 鈥� including that they extend to all persons within the US, including aliens in the country unlawfully 鈥� are 鈥減otentially quite far-reaching,鈥� according to Adler. Other courts, including the Supreme Court, could take a narrower view.
Given that the Ninth Circuit is the court听most often overruled听by the Supreme Court, it鈥檚 certainly a possibility that parts of听Thursday鈥檚听opinion could be reinterpreted by other judges in ways friendlier to the government.
Yet while the court鈥檚 opinion may have flaws, it has shown that the executive order likely has flaws of its own. This, Professor Schwinn says, gives the Trump administration options.
鈥淗aving a ruling like this on the books now tells the White House that there may be another option, other than pursuing this particular executive order to the death in the courts,鈥� he adds. 鈥淕o back to the drawing table and rewrite it and do it right, or go back to drawing table and don鈥檛 do it at all.鈥�
Whether Trump would be willing to concede defeat like that 鈥� particularly to what many consider the most liberal appeals court in the country 鈥� is an open question. What is clear is that in a moment where the president's hostility to the judiciary is raising eyebrows, even from his own Supreme Court nominee, this opinion is further evidence that the courts will be an unflinching check on Trump鈥檚 disruptive style of governance.
鈥淏y requiring the government to actually present such evidence [of security threats], rather than simply accepting its invocation of national security at face value,鈥� wrote Professor Vladeck, 鈥渢he court reaffirmed the role that independent, life-tenured judges can play in cases tugging at the nation鈥檚 emotional and rhetorical heartstrings.鈥�
