See You in Court … Maybe

The Department of Justice has four options to salvage Trump’s immigration ban. Only one makes sense.

President Donald Trump listens as he meets with county sheriffs during a listening session on Tuesday in Washington.

Andrew Harrer/Pool/Getty Images

What’s next for Donald Trump’s immigration executive order? On Thursday, a panel of judges for the U.S. Court of Appeals for the 9th Circuit denied the government’s request to lift a nationwide injunction placed on the de facto Muslim ban by a lower court. (Technically, the lower court order was a temporary restraining order with “the qualities of a reviewable preliminary injunction,” but I’ll call it an injunction since that’s how it functions in practice.) While the Justice Department did not immediately disclose its next move, Trump quickly tweeted that he would “SEE YOU IN COURT.”

Whether Trump will be seeing anyone in court remains an open question. Although the 9th Circuit decision was a blow to Trump’s anti-immigrant agenda, several avenues remain open to the Justice Department if it wishes to salvage the ban. Here’s a rundown of the government’s options.

1. Request an en banc rehearing from the 9th Circuit.

Thursday’s decision was issued by a three-judge panel. The DOJ has the right to petition the 9th Circuit to reconsider the case en banc—that is, to get a hearing before a court of 11 judges. (En banc review usually involves the full appeals court, but the 9th Circuit has so many judges that this option is a practical impossibility.) If the 9th Circuit agrees, it will vacate Thursday’s decision and fully reconsider the government’s request to lift the lower court’s injunction.

A request for en banc rehearing has one plus for the government: It delays the speed with which this case careens toward the Supreme Court. If the government thinks Trump’s Supreme Court nominee Neil Gorsuch may provide a fifth vote to lift the injunction, it should attempt to delay proceedings until Gorsuch is seated. An en banc rehearing is probably the best way to do that.

On the other hand, a rehearing would likely end in immediate defeat for the DOJ. The 9th Circuit is quite liberal and the odds of an en banc court lifting the injunction are quite slim. Moreover, it isn’t clear that this case splits along partisan lines: Thursday’s panel decision, after all, was unanimous, joined by two liberals and a conservative. And the district court judge who issued the injunction in the first place is a moderately conservative George W. Bush appointee.

Ultimately, petitioning for a rehearing en banc feels like a waste of time. It only makes sense for the government if wasting time is precisely what it wants.

2. Appeal to the Supreme Court.

The government could also ask the Supreme Court to intervene, reverse the 9th Circuit, and lift the injunction. Taking this case to the justices now feels like a mistake, though. The court is now evenly divided along ideological lines: If all four liberal justices vote to maintain the injunction and all four conservatives vote to lift it, the court will deadlock 4–4. A tie would simply affirm the 9th Circuit decision which, of course, the government does not want.

But I’m not so sure the court would vote along ideological lines. The government has argued that the executive order is “unreviewable” by courts because it involves national security concerns. That claim seems designed to irritate Justice Anthony Kennedy, who rejected a similar argument in his landmark 2008 opinion in Boumediene v. Bush. For Kennedy, the government’s insistence that the courts cannot examine the ban’s constitutionality may be deeply disturbing and push him to examine the government’s claims with skepticism. If Kennedy decides to vote with the liberals, Chief Justice John Roberts could seek to avoid a close split by joining their bloc, creating the appearance of a nonpartisan consensus.

Guessing vote counts on the Supreme Court is always a fool’s game. For all we know, the court could unanimously reverse the 9th Circuit and lift the injunction. But it’s fair to say that the odds do not favor the government. The liberal justices do not like government actions that abridge the liberties of thousands based on some arguably arbitrary classification. And Kennedy does not like being told that it isn’t his job to say what the law is.

3. Re-litigate the case in another circuit.

On CNN, Alan Dershowitz advised the government to re-litigate this case in a different circuit, perhaps the more conservative 5th Circuit Court of Appeals. But there are technical legal reasons why the DOJ may be barred from raising the same claims about the same executive order in a different court. Plus, at best, this strategy would lead to a circuit split with dueling and contrary decisions out of two different federal circuits. That would lead to Supreme Court review, which, in turn, leads to the same problem described above: It’s not clear how the government can grab five votes on the current court.

4. Withdraw the executive order and issue a new one.

This option makes the most sense for the government, and the White House is reportedly considering it. There is almost certainly a legal way for Trump to slow immigration, even from Muslim-majority countries, and to curb the refugee program. But he’ll have to craft an order that includes due process protections, excludes questionable language about religion, and acknowledges that it does not apply to lawful permanent residents. This hypothetical order must strike disturbing language designed to prefer Christians over Muslims and focus on visa applications going forward rather than targeting current visa-holders.

Such an order may not be what Trump wants but it could be written to pass constitutional muster. Whether his hubris will prevent him from conceding defeat in this round of battle is unknown. But if the White House decides to actually work with lawyers and executive agencies to limit immigration, it can get the job done. The result may be unfair and even cruel. But it could be made to comport with the Constitution.