What Are Donald Trump’s Options Now to Restore The Travel Ban?

Here’s a look at where the Trump administration’s legal battle to get the Muslim ban restored could go. 

2 min read
US President Donald Trump and First Lady Melania Trump. (Photo: AP)

President Donald Trump has promised more legal action after a federal appeals court refused to reinstate his ban on travelers from seven predominantly Muslim nations. Trump tweeted "SEE YOU IN COURT" after the decision came out Thursday, but what he has in mind remains to be seen.

Trump said Friday that he has "no doubt" he will win the case in court and told reporters he's considering signing a "brand-new order" on immigration.

The 3-0 ruling means that refugees and people from the seven nations — Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen — can continue entering the United States for now. The administration has several options on how to proceed.

How the Battle Could Unfold

  • The Trump administration could decide to ask the 9th US Circuit Court of Appeals to reconsider the three-judge panel's ruling.
  • But the odds of success seem low, said Margo Schlanger, a law professor at the University of Michigan. She noted that the three-judge panel was unanimous and included a judge chosen by a Republican president.

Appeal in Supreme Court

  • The government could file an emergency appeal in the Supreme Court and ask the justices to restore the ban.
  • But it would take at least five justices to overturn the ruling from the 9th US Circuit Court of Appeals, and that may be a long shot.
  • The high court still has only eight members since the death of Justice Antonin Scalia — four conservative and four liberal justices.
Trump took to Twitter over the weekend to condemn the Friday order by Judge James Robart that placed on hold the President’s 27 January temporary travel ban. (Photo: AP)
Trump took to Twitter over the weekend to condemn the Friday order by Judge James Robart that placed on hold the President’s 27 January temporary travel ban. (Photo: AP)

"There are almost surely four votes to deny an emergency request to reinstate the order," said Peter Spiro, a law professor at Temple University.

The last immigration case to reach the justices ended in a 4-4 deadlock last year. That suggests a similar split over Trump's order, which would let the 9th Circuit ruling stand and keep the freeze in place.

Waiting for Gorsuch

If the Supreme Court declines to intervene right away, the case would remain in the 9th Circuit and ultimately be considered on its legal merits. It also could return to US District Judge James Robart in Seattle, who temporarily blocked the ban after Washington state and Minnesota urged a nationwide hold on the January 27 order.

The lower court action so far is temporary and hasn't resolved broader questions about the legality of Trump's order. It simply halts deportations or other actions until judges can more fully consider whether the order violates legal or constitutional rights.

Allowing the case to play out longer at the appeals court has one advantage: By the time a ruling on the merits comes down, the Senate may have confirmed Judge Neil Gorsuch to the Supreme Court. That may improve Trump’s chances to prevail on appeal.

But just how the issue might reach the Supreme Court isn't clear. Several other challenges have been launched in courts around the country, and the court could opt to wait before stepping in.

(The Quint is available on Telegram. For handpicked stories every day, subscribe to us on Telegram)

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