High Court stalemate may play role in travel ban lawsuit

WASHINGTON — The legal challenge to President Trump’s executive order barring citizens of seven majority-Muslim nations from entering the United States is moving quickly toward the Supreme Court, where Republicans’ yearlong refusal to fill a vacant ninth seat could determine the outcome.

As soon as Monday, a panel of the 9th U.S. Circuit Court of Appeals may decide whether to overturn a Seattle-based trial judge and put Trump’s order back into effect.

But the panel’s initial decision, whatever it is, will be only an intermediate step for the challenge now led by the states of Washington and Minnesota. The case is destined for the Supreme Court, whose eight members are evenly split between liberals and conservatives because of the vacancy created last year by the death of Justice Antonin Scalia.

“They don’t have a comfortable majority,” Yale Law School Professor Harold Koh, a former State Department official in the Obama administration, said in an interview Sunday, referring to the Trump administration.

The case could be in front of the Supreme Court by the end of the week or next week, said Leon Fresco, the head of the U.S. Justice Department’s Office of Immigration Litigation under President Obama. The timing depends, in part, on whether the 9th Circuit upholds the Seattle judge’s restraining order, and whether the government immediately appeals or waits for other courts to act.

As long as the case remains undecided and the travel ban is blocked, the same tension that has surrounded the order since Trump signed it Jan. 27 is likely to continue.

At the very least, the Supreme Court’s all-but inevitable consideration of the executive-order challenge will lead to even more attention to Trump’s nomination of Judge Neil Gorsuch to the seat Scalia held. Gorsuch can now expect larger and louder questions about the limits of presidential power, though it’s unlikely he’ll be seated in time to take part in any hearings on the case.

Substantively, the Supreme Court’s empty seat creates the possibility of a 4-4 split, which would uphold whatever ruling the reputedly liberal 9th Circuit makes. It would take five justices to agree for the court to grant a stay.

The Supreme Court’s and 9th Circuit’s legal considerations, moreover, will occur under the scrutiny of a president who now has repeatedly challenged the legitimacy of judges who displease him. This could compel Justice Department attorneys to assure courts that the executive branch accepts the judicial branch’s authority to rule on the law.

Vice President Mike Pence expressed confidence the administration’s travel ban would eventually be upheld in a series of appearances on Sunday morning news programs.

“We’ll accomplish the stay and will win the case on the merits,” Pence said on NBC’s “Meet the Press.”

A Republican appointee, U.S. District Judge James Robart, Friday night blocked the executive order from taking effect nationwide — adding his more sweeping order to a half-dozen rulings by other federal judges that backed more limited challenges.

The White House responded angrily. Press secretary Sean Spicer called the decision “outrageous” in a statement that was later withdrawn and revised.

Trump escalated the rhetorical fight via Twitter, with posts blasting Robart as a “so-called judge” who made a “ridiculous” decision.

“I don’t understand language like that,” Sen. Ben Sasse, R-Neb., said Sunday on ABC’s “This Week.” “We don’t have so-called judges, we don’t have so-called senators, we don’t have so-called presidents, we have people from three different branches of government who take an oath to uphold and defend the Constitution. So, we don’t have any so-called judges, we have real judges.”

Senate Majority Leader Mitch McConnell, R-Ky., said on CNN’s “State of the Union” that “it is best not to single out judges.”

Trump disregarded the advice, returning to Twitter Sunday afternoon to write that he “Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!”

Late Saturday, the Justice Department’s Trump-appointed acting solicitor general, Noel J. Francisco, filed papers with the 9th Circuit asking that Robart’s nationwide order be stayed.

Two 9th Circuit judges, both Democratic appointees, denied the Justice Department’s request for an emergency stay, and instead set a schedule to receive a brief from Washington and Minnesota late Sunday, followed by another Justice Department brief by Monday afternoon. Several former government officials also are expected to file “friend of the court” briefs supporting Washington state’s position.

Whichever side loses at the 9th Circuit can then ask the Supreme Court for emergency action. Such a request would first go to Justice Anthony Kennedy, who handles such cases coming from the 9th Circuit; he, in turn, would likely refer the matter to the entire court. Four justices must agree for the court to take up the appeal; a stay of the 9th Circuit opinion would require a fifth justice to agree.

The case also could be dragged out.

It took months for the 5th U.S. Circuit Court of Appeals to agree with a district judge in Texas that the Obama administration had exceeded the president’s powers and issued a nationwide injunction against Obama’s effort to defer the deportation of millions of undocumented immigrants who had been in the country since 2010.