Having watched the legal maneuvering around the Trump administration’s first, poorly written travel ban, I was on notice for challenges to the new, improved executive order. And they did come from several directions, as I noted at New York:
[D]espite a major revision of the order to “fix” problems the courts found in the initial action, not one but two federal district judges, in two widely separated judicial circuits, have put it on hold.
Worse yet, in both cases (Judge Derrick Watson in Hawaii, and Judge Theodore Chuang in Maryland) the problem the judges identified was not something any revision could likely “cure”: It is the claim that the whole process is just a thinly veiled effort to implement a blatantly unconstitutional “Muslim ban,” as evidenced by Donald Trump’s own proposals during the presidential campaign.
So what’s an “America First” president to do?
The most prudent course of action might well be to forget about the temporary travel ban and move on as quickly as possible to the new system for vetting applicants for visas and for refugee status the ban was supposed to give the administration time to develop. Max Zapotsky explains:
“The administration was supposed to have been working on that review the first time around, but with a new order came new deadlines. Although it probably wants to win in court to avoid an authority-curtailing precedent …the administration could simply finish its review and implement new vetting procedures that did not impose an outright ban. That might make the litigation moot.”
This approach, of course, would involve surrender to the “so-called judges” who have stood in Trump’s way, so that is very unlikely, particularly after Trump devoted ten fiery minutes at a rally in Nashville last night attacking the “judicial overreach” and threatening to bring back the original, broader order.
That idea probably occurred to Trump (or someone in TrumpLand) because in something of a coincidence the full Ninth Circuit Court of Appeals decided yesterday not to vacate the earlier order on the first travel ban (issued by a three-judge panel) denying the administration a go-ahead on national-security grounds. In dissent, five judges said the courts should have deferred to the president’s national-security authority the first time around. So there is some conservative judicial support for that proposition, even on the “liberal” Ninth Circuit.
But again: These were dissenters, and the odds are very low the full Ninth Circuit or any particular three-judge panel of same will reach that conclusion if and when the administration appeals Watson’s ruling. In agreeing to make the revision, the White House was implicitly conceding it did some pretty sloppy work back in January. Though Trump’s ego might want a total vindication, it’s not likely to succeed unless the Supreme Court intervenes on his behalf after some additional judicial setbacks.
The more conventional approach would be to stick with the revision and instead go after the finding that Trump’s (and Rudy Giuliani’s) comments on the campaign trail are relevant to what he is trying to do as president. At Lawfare this morning, Peter Margulies argues the administration will eventually prevail on that point.
But it might take a while, and involve a long and winding road to the Supreme Court. Knocking down Watson’s order will take the government through the obviously not very sympathetic Ninth Circuit. And even if they succeed, there’s Chuang’s order, which applies only to the visa application portions of the travel ban (because that’s all the plaintiffs in the case were challenging). Overturning that order means going through the Fourth Circuit Court of Appeals.
Assuming the case does get to the Supreme Court, timing would be a big issue. For one thing, the Court is currently shorthanded. If, however, the administration waits to make its pitch for SCOTUS intervention until Trump’s nominee Neil Gorsuch is confirmed, that could make for additional delay. Since the official position of the White House is that terrorists are likely pouring over the borders and into the airports every moment the travel ban is not in place, a posture of accepting delays doesn’t make a lot of sense.
What we are probably facing, then, is a murky and complicated schedule of legal maneuverings punctuated occasionally by judge-bashing explosions from the president of the United States. It may not be the smartest way for him to get his way, but for a man whose main fear in life seems to be the appearance of looking “weak” (his frequently expressed concern about the travel-ban delays), it may be the only way Donald Trump can handle it.
I feel sorry for his lawyers.