*Practice limited to federal immigration law. Licensed in NY, MA, but not in CA.

Appeals Court Rules to Continue Block on Trump Travel Ban

Last night, the U.S. Court of Appeals for the 9th Circuit unanimously ruled to continue the Temporary Restraining Order (TRO) on President Trump’s Executive Order banning Muslims and refugees. This news comes following President Trump’s announcement of three immigration-related executive orders and federal judge James L. Robart’s ruling to temporarily block the third of those orders while he rules on an injunction, or complete stop, to that order.

Here’s what you should know about this court decision and what’s yet to come:

I Heard the Travel Ban Is Still Blocked, Is That True?

  • Yes. Judges Michelle T. Friedland, Richard R. Clifton, and William C. Canby released a 29-page unanimous decision last night ruling that Judge Robart’s decision to temporarily block the Trump administration’s travel ban nationwide was legitimate and constitutional.
  • It’s likely that the Trump administration’s legal team at the Department of Justice will appeal the decision to the Supreme Court, but that decision would be complicated by the fact that the court is currently short one Justice.

What Happens Now?

  • At this time the Trump administration has not taken any actions to appeal this latest decision, but President Trump’s tweet: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” This suggests that his administration will soon appeal the decision.
  • The Department of Justice has two choices for appealing this latest ruling: it could appeal to the full 9th Circuit, a community of 11 judges rather than 3, or it could appeal to the Supreme Court. Appealing to the full 9th Circuit would be unlikely to help the Trump administration in any way, as the circuit is famously liberal. Similarly, the Supreme Court is currently split evenly between liberal and conservative justices so it’s unlikely that a liberal judge would side with the travel ban to give the Trump administration a 5-3 ruling. The Department of Justice may still decide to appeal the decision for the sake of taking action, but at this time it’s unlikely that either of these courts would rule for the Trump administration.
  • However, there’s an important distinction between the Temporary Restraining Order and the injunction that could influence the future of the travel ban. Judge Robart ruled to issue a TRO while he decides on the injunction, but he has not yet made that ruling. This means that the Trump administration is only appealing the TRO at this time. Once Judge Robart rules on the injunction, either the State of Washington or the Trump Administration will be able to appeal that decision to the 9th Circuit and then possibly to the Supreme Court again.
  • By the time the injunction reaches the Supreme Court, which could take several months (the TRO is an emergency order so it warrants quick hearings, but an injunction would take a normal amount of time to pass through the 9th Circuit, the Court of Appeals, and then the Supreme Court), we may have a new Supreme Court Justice. President Trump has just recently nominated Judge Neil Gorsuch to the Supreme Court, and it’s difficult to say whether he will be confirmed at this time. But, if appointed, Gorsuch would split the court 5-4 for the conservatives. Gorsuch, or any of the conservative justices, could of course vote against their party, but that would be difficult to predict.

What Does This Mean for American Democracy?

  • These travel ban hearings have raised many questions about the state of judicial review and the rule of law in the United States, largely because of the clear disdain President Trump has shown for the court’s rulings.
  • However, judges have continuously emphasized their place as a check on executive power in our constitutional democracy.
  • What’s notable about these last two court rulings is that two of the four justices involved were appointed by Republican presidents. This shows that the travel ban is not a partisan issue, but rather a clear violation of constitutional non-discrimination policies.
  • In their official opinion, the appeals court judges clearly stated that any attack on the judiciary “runs contrary to the fundamental structure of our constitutional democracy” and that the Executive Order does not provide “what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel.”

What Else Should I Know About the Executive Orders?

It’s important to remember that this ruling affects only the third of President Trump’s three executive orders on immigration. The administration’s rulings on border security, deputizing local police forces, and detention still apply but deserve scrutiny.

Our Los Angeles Immigration Lawyers Are Here For You

This case is likely to evolve over the course of the next several days and months. We’ll be monitoring the situation for you as the case progresses.

Call our immigration lawyer in Los Angeless today. We’re here for you to help you understand what’s happening and to help you figure out what your options are. We vehemently disagree with President Trump’s approach to immigration, and we will fight for you and alongside you each and every day.

 

Josh Goldstein
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