Trump’s immigrant ban could lead to U.S. Supreme Court

One federal appeals court has weighed in on the Trump administration’s immigration ban, and should another appeals court in another region of the country offer a competing view, it could send the debate to the U.S. Supreme Court. To discuss the legal ramifications of the immigration ban, University of Texas Law School Professor Steve Vladeck joins Hari Sreenivasan.

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    One federal appeals court has weighed in on the Trump administration's immigration ban, and should another appeals court in another region of the country offer a competing view, that could set the debate on a direct path for the U.S. Supreme Court.

    To discuss the legal ups and downs of the immigration ban, I'm joined now from Austin, Texas, by University of Texas Law School Professor Steve Vladeck, who's also the co-editor-in-chief of the "Just Security" blog.

    So, first of all, a little bit of legalese to clarify for the audience, what's the meaning of a temporary restraining order versus an injunction, it looks like Seattle's one thing but not the other.



    Yes, the a temporary retraining order or a TRO in legal parlance is a very preliminary order that's supposed to be, as it says temporary. Basically, it's supposed to freeze the status of the parties for long enough for the court to decide whether to take the next step, which is whether to issue what is called a preliminary injunction. Preliminary injunction could be indefinite and the idea behind the preliminary injunction is to keep that going for long enough for the courts to actually settle the merits of the underlying dispute and eventually to decide whether we should have a permanent injunction if the underlying policy is illegal or lift the injunction and let the order go into effect.


    But the White House has already went in and said that this temporary restraining order doesn't work for them. So, what's the next appeal? What's the step that they take?


    Sure, so they actually have now appealed to the Ninth Circuit, this is the federal appeals court in San Francisco, and they basically said, "Dear Ninth Circuit, we'd like you to lift the temporary restraining order imposed by the federal district judge in Seattle," in effect, "We'd like the Ninth Circuit to put back in place the executive order so we can continue to enforce it." The Ninth Circuit very late Saturday night denied the government's request for an emergency stay, but is now considering whether it should keep that order by the district court in place, briefs are due all throughout the day on Sunday and we might get a ruling from the Ninth Circuit as early as Monday.


    So, the Ninth Circuit has jurisdiction over the Seattle judge, right? But can the White House look for one of the other cases in the other parts of the country to go to an appeals court that might be more favorable to their point of view?


    They certainly can. So, for example, there have been orders issued in Brooklyn, in Boston, in Detroit. There's also now a case in Los Angeles and a new one in Hawaii, although those last two, of course, are also in the Ninth Circuit, the problem is that it's the Ninth Circuit that is by far the furthest along. So, it's going to be very hard for the government to pick a different battlefield. I think at least for the moment, it's the Ninth Circuit case where we have a nationwide stay in effect that's preventing the government from enforcing this executive order, that's really going to be where all of the fighting is and potentially the first candidate for getting this case up to the Supreme Court.


    And how long does it take for the Ninth Circuit to sort through this? They have to get a larger panel of judges to look at this now, right?


    Well, it depends. I mean, so, it only takes two judges to act on these kinds of emergency applications, and indeed the order that was signed very, very late Saturday night was signed by exactly two judges. The Ninth Circuit could decide perhaps as early as Monday to leave intact or to lift the order that the Seattle district judge issued on Friday, if they're going to decide on very narrow grounds.

    The more broadly the ninth circuit wants to rule, if they actually want to reach out and decide whether we're going to have some kind of preliminary injunction going forward, the longer we might expect. I think we'll probably see a ruling maybe Tuesday or Wednesday. Then the question becomes whether whoever loses that round, which quite likely is going to be the Trump administration, tries to go to the Supreme Court.


    And even this morning, we heard Vice President Pence go out on all of the Sunday shows and say, the president has the authority to do this, this is in the Constitution. Does he?


    Well, I think it's worth stressing — we haven't answered that question yet. So, even the Seattle order that was issued Friday night was not based on the district court's conclusion that the executive order is illegal. It was based on the district court's conclusion that there is enough of a chance that it is illegal that to preserve the status quo, we have to take this preliminary step.

    I think at the end of the day, when we finally get to the merits of these cases, some parts of the executive order will likely survive, others will almost certainly be invalidated. But we're a long way off from that as opposed to this very preliminary stage, where the question simply is, how do we balance the equities, how do we preserve the status quo to allow the courts to reach those issues on a floor schedule with more time and with more care?


    All right. UT Austin Law School Professor Steve Vladeck — thanks for joining us.


    Thank you.


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