For weeks, President Trump has bemoaned court decisions blocking two versions of his ban on travel from six majority-Muslim countries and all refugee resettlement, saying he wants to take his case to the highest court of the land.
Soon, he might get the chance.
The Department of Justice’s appeal on Thursday of a Hawaii court order halting the latest iteration of the ban means the federal government is now fighting to implement it in two federal appeals courts on opposite ends of the country: the 9th Circuit in San Francisco and the 4th Circuit in Richmond, Va.
If the courts issue rulings that conflict with each other, legal experts said, there is a high chance that the Supreme Court would take up the case.
Timing could be on Trump’s side. The president’s high court nominee, Neil Gorsuch, is expected to be confirmed and sworn in in April, tipping the ideologically divided court to lean conservative.
“Appealing to the Supreme Court was risky before,” said Josh Blackman, a constitutional law professor at the South Texas College of Law Houston. “But now it makes more sense.”
Even if the appeals courts rule similarly on the ban, Blackman said, the Supreme Court could still choose to review it if a request is made and at least four of its justices agree. The court would not have to wait for both lower courts to rule.
Earlier this month, the Department of Justice appealed a Maryland district judge's order against the travel ban to the Fourth Circuit.
The rulings in Hawaii and Maryland said Trump's executive order discriminated against Muslims and cited his campaign promises to suspend Muslim travel to the U.S. as evidence of his order's anti-Muslim bias.
The Hawaii ruling is broader than the Maryland one. It blocks the most significant parts of order, which seeks to prevent citizens of six majority-Muslim countries — Iran, Libya, Somalia, Sudan, Syria and Yemen — from entering the U.S. for 90 days and stop all new refugee resettlement for 120 days. The Maryland ruling halted only the ban on travel into the U.S.
Oral arguments are scheduled for May 8 in the 4th Circuit, which hears cases from nine federal district courts in Maryland, Virginia, West Virginia, North Carolina and South Carolina. But the court could rule sooner on an emergency request from the government to to reinstate the travel ban before a hearing on the fuller merits of the case.
“I expect the loser will seek Supreme Court review,” said UC Irvine Law School Dean Erwin Chemerinsky. “I do not think the Trump administration will give up on this.”
The decision in the 9th Circuit is expected to come later.
A three-judge panel from the court already denied a government request last month to reverse a ruling against the first travel ban by a federal judge in Washington state. The full court then refused to revisit that decision, though five judges dissented.
Trump lampooned the “bad court,” which has jurisdiction over federal courts in nine Western states.
He signed a new executive order on travel on March 6 that was modified in an attempt to survive court challenges.
The new order removed a preference for refugees who are religious minorities and gave exemptions from the travel ban to green-card holders and those who already held valid visas. It also removed Iraq from the list of countries whose nationals could not travel to the U.S.
Those changes appeased at least one federal judge in Virginia, who ruled in a separate case on March 24 that the revised travel order likely “falls within the bounds” of Trump’s presidential authority.
The opinion from U.S. District Judge Anthony Trenga of the Eastern District Court of Virginia, which rejected a request to halt the travel order, gave less weight to Trump’s statements during the presidential campaign. It more strictly looked at how the travel ban is worded in light of presidential power over immigration and national security.
The opinions of judges in favor of Trump will likely be cited in higher courts, including the Supreme Court, Blackman said.
“I have no idea how the [Supreme] Court would rule,” he said. “But the executive order is toast if the administration fails on it a second time.”