Appeals Court Rejects Immediate Reinstatement of Travel Ban—Where To from Here?

February 5, 2017; CNN Politics

The Ninth U.S. Circuit Court of Appeals upheld the order of a federal judge in the state of Washington imposing a nationwide stay on President Trump’s temporary travel ban. As CNN notes, “The order bars citizens of seven Muslim-majority countries—Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen—from entering the U.S. for 90 days, all refugees for 120 days, and indefinitely halts refugees from Syria.” The president’s executive order was signed on January 27.

The federal appeals court ruling applied solely to the Justice Department’s request on Saturday for an immediate stay of the district court injunction imposed on Friday. The appeals court has asked attorneys representing both the federal government and the government of Washington state to return on Monday prepared to argue the merits of the case. Meanwhile, a seven-day stay issued by a federal judge in Boston is set to expire at 11:59 p.m. on Monday, and it’s unclear whether the First Circuit (which includes Massachusetts) will rule exactly the same way as the Ninth Circuit (which includes Washington state). In addition, a different federal judge in Boston ruled in favor of the Trump administration, citing the president’s broad Constitutional powers over immigration. Though two federal courts have ruled differently and two dozen lawsuits and petitions have been filed across the country, the government is abiding by the injunction decision made by U.S. District Judge James L. Robart in Seattle due to its uniquely comprehensive approach to the executive order.

What does this all this legal wrangling mean? There’s strong potential that one or more parties will appeal the travel ban to the U.S. Supreme Court as soon as the respective appeals courts issue their rulings. Given the temporary nature of the ban (except as it applies to Syrian refugees), the Supreme Court may choose to accept the case or cases on an expedited basis. Alternatively, it may decline to hear the cases on an expedited basis and, instead, allow a single Supreme Court justice (Justice Breyer in the First Circuit, Justice Kennedy in the Ninth Circuit) to decide whether the appeals court decisions will be implemented or stayed. If so, the clock will likely run out on the immigration bans, rendering those cases moot. Depending on how long the “indefinite” Syrian refugee ban remains in place, a case centered on that section of the executive order may still be considered timely by the Court.

The temporary ban has caused widespread confusion both within and between federal agencies as well as for immigrants, refugees, advocates, airlines, and foreign governments. For example, the ban was enforced differently at different U.S. ports of entry across the globe, with some refusing entry to foreign nationals from the affected nations who already possessed valid visas or lawful permanent resident (LPR, or “green card”) status. The order was later clarified by the U.S. Department of Homeland Security to include green card holders from the seven affected countries. Meanwhile, immigration advocates and others are encouraging immigrants to travel to (or return to) the U.S. as soon as possible, as court decisions affecting implementation of the executive order could change again suddenly.—Michael Wyland