Trump Can't Simply Appeal Adverse Travel Ban Ruling

Trump Can't Simply Appeal Adverse Travel Ban Ruling
It's Not At All Clear Supreme Court Will Rule Without Circuit Split

Press Release ( - WASHINGTON - May 26, 2017 - Although lawyers for President Donald Trump have vowed to appeal yesterday’s ruling by the 4th Circuit U.S. Court of Appeals upholding a stay of his travel ban, it’s easier said than done, and the Supreme Court may well decide, for several reasons, to not even hear the case, much less to rule in his favor, says public interest law professor John Banzhaf.

        In most cases, parties have a right to appeal a decision unfavorable to them to a higher court, but this is not true of decisions from a circuit court ruling.

        While the term “appeal” is often used, the word may be misleading because it implies that the court to which the appeal is taken will in fact consider the case.  However, in seeking review of a circuit court decision, the losing party must file a petition for a “writ or certiorari” or “cert” to the Supreme Court.

        But the high court each year grants only a tiny percentage of such requests.  In situations such as this, the strongest argument for obtaining review is if two or more circuit courts have issued conflicting opinions on an important issue of law.

        In this situation, however, it seems much more likely that the 9th Circuit – where a similar case is pending – will likewise refuse to overturn the stay on Trump’s travel ban, so there will be no conflict between the circuits for the justices to seek to resolve.

        Baring a conflict between the circuits, the Supreme Court is likely to accept a case for review only if it involves an unusually important legal principle, and the facts and procedural posture of the case make it suitable for the Court to try to resolve this issue.

        But although there are important underlying legal issues about the president’s authority to unilaterally adopt restrictions on immigration to guard against possible security threats, the Court may not see them as clearly presented here.

        The travel ban was always a temporary measure designed to last only 90 days, not permanent, so Trump remains free to adopt more permanent restrictions in the future which might make a better case for judicial consideration.

        Indeed, there is even a suggestion that Trump might have to ask the Court to act on an emergency basis before time runs out and the issue may become moot.

        Given the many delays since the first executive order was issued, it is harder to argue that the threat of terrorists sneaking into the country is so severe that immediate action is still required.

        Another reason why the Supreme Court might not wish to consider these issues at this time is that no court so far – also including the 9th Circuit when it decides the case now before it – will have actually decided the constitutional issues.

        In each situation in which a stay was requested, the courts were required only to decide whether the plaintiffs’sargument was a strong one – they were not  required to decide the constitutional issue itself.

        Since all courts are reluctant to decide important issues of constitutional law prematurely, and at a time when no other court has decided them, these factors may make the Court even more reluctant to grant review at this time.

        At least four justices must vote to grant cert and allow the case to be considered, and it is not at all clear that either liberal-leaning or conservative-leaning justices would be so inclined, argues Banzhaf.

        Those who seem to oppose the travel ban might be quite content to simply leave the stays of the order in place rather than risking having them overturned by a majority of the Supreme Court.

        On  the other hand, those justices which might favor some kind of travel ban may not be confident that they can obtain five votes to overturn the decisions of the courts below.

        Moreover, even if five or most justices did vote to allow the travel ban to go into effect, it would be only a short-lived victory for its proponents since the measure is only a temporary one, and therefore perhaps not worth the risk, the expenditure of time and energy, and the risk of adverse public reaction and possible damage to the Court’s reputation involved in seeking such a resolution, suggests Banzhaf.

        If this occurs, the president’s lawyers would be wise to learn from their experiences before these various courts and, at the vary least, do the following, suggests Banzhaf.

    (1) Renounce – or at least substantially limit – earlier statements about banning entry to the country by Muslims, and remove any such statements from web pages and wherever else possible;

    (2) Direct the Department of Homeland Security to independently draft any new travel ban rules, and avoid, as much as possible, any direct involvement by the President and those close to him;

    (3) Insure that any travel ban includes at least a few nations which are not majority-Muslim countries, for example: North Korea, South Sudan and the Central African Republic;

    (4) Try to insure minimal if any comments by the President, those close to him at the White House or elsewhere, and even those who might be regarded as “surrogates”;

    (5) If there must be criticism regarding judicial handling of his travel ban executive orders, it should be restricted to comments related to the legal reasoning, and not involve derogatory remarks about individual judges or courts, or the institution of judicial review itself.  Although judges are supposed to decide cases impartially, they are only human, and may consciously or even subconsciously react to what they may perceive to be a vendetta targeting all judges and their important role.  @profbanzhaf

Source : Public Interest Law Professor John Banzhaf
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