The legal moves and counter-moves in the court case concerning Donald Trump’s ‘travel ban’ Executive Order may appear complicated, but in reality they follow standard practice. Since there are some misunderstandings in reporting them I will provide a brief explanation.
The federal judge in Seattle on Friday did not rule that the Executive Order is unconstitutional or illegal. Rather he ordered a temporary two week stay on the enforcement of the Executive Order until this question of its legality is decided in further argument before him in two weeks time.
In doing so the judge acted fully within his powers, though as I understand it he took a different view from a different federal judge in Massachusetts who apparently refused to grant a similar stay when he was asked to do so at roughly the same time that the judge in Seattle was making his decision.
The Department of Justice is appealing the stay. It is doing so on the grounds that the Executive Order is fully legal and constitutional and needs to be brought back into force immediately in order to protect the US from potential terrorists, who might take advantage of the stay to enter the US during the two week period when it is in effect.
On Saturday the Department of Justice asked the federal appeal court in San Francisco (which will hear the appeal) to lift the stay. The federal appeal court however refused to do so, saying that the plaintiffs who applied for the stay should be given an opportunity to respond. It gave the plaintiffs until Sunday (ie. today) to file their objections to the Department of Justice’s application to lift the stay, with the Department of Justice instructed to file its counter-objections on Monday (ie. tomorrow).
Contrary to some media claims, this is completely standard practice during appeals. It would be very unusual for an appeal court to set aside a judge’s order – even a temporary order – without a full hearing, and the Department of Justice will undoubtedly have known this when it applied to the appeal court to have the stay lifted on Saturday.
The reason the Department of Justice made the application on Saturday is because it wants to emphasise to the appeal court the urgency of the situation. This is important, not just because of the danger of terrorists entering the US during the period of the stay, but because unless the appeal court is convinced of the urgency of the situation it will simply say that the Department of Justice should wait until the hearing ordered by the federal judge in Seattle in two weeks time.
In other words by insisting that the stay be lifted immediately the Department of Justice is providing reasons to the appeal court to take the case out of the federal judge’s hands, so that it can decide the case itself. That was the true purpose of the application on Saturday, and it succeeded.
I expect the appeal court in San Francisco to decide the appeal this week, possibly as soon as Tuesday or Wednesday.
As I am not an expert in US constitutional law I do not know what the outcome of the appeal will be. I should say that it would be completely wrong to try to guess the outcome from the decision the appeal court took on Saturday.
The appeal will be purely on the question of the rightness or otherwise of the stay. If the appeal decision goes against the President it will be for the Department of Justice to put his case to the federal judge at the full hearing in two weeks time. If that decision also goes against the President, he can appeal again to the federal appeal court in San Francisco, and beyond that to the Supreme Court.
By contrast if the Department of Justice wins the appeal this week then I would expect the plaintiffs to drop the case in Seattle and try to go directly to the Supreme Court. Since the appeal court would have effectively affirmed the legality of the Executive Order, there would be little point in the plaintiffs continuing to contest the Executive Order before the federal judge in Seattle.
One way or the other I expect this case to go to the Supreme Court. With the Supreme Court apparently evenly split between conservatives and liberals, and with it being highly unlikely that Neil Gorsuch – Trump’s nominee for the vacancy in the Supreme Court – can be confirmed in time for the hearing of the case, it looks like a nail-biting battle, with no certain outcome.