President Trump’s Department of Justice has several options to challenge Thursday’s ruling by a federal appeals court, which refused to reinstate the temporary travel ban targeting seven majority-Muslim countries.
The department said in a statement Thursday that it was reviewing those options. The ruling came on the same day that Attorney General Jeff Sessions was sworn in, meaning the former Alabama senator will have a big decision to make within hours of taking the job.
1. Go to Supreme Court
The administration could appeal directly to the Supreme Court. That could be a difficult road, however, as the court remains short one justice and deadlocked 4-4 between conservatives and liberals. With Trump’s nominee to fill the vacant ninth seat, Neil Gorsuch, just beginning a lengthy confirmation process, the high court could decide not to hear the president’s appeal. Five votes are needed to overturn the lower court’s decision.
2. Go to full Court of Appeals
The Justice Department instead could appeal the three-judge panel’s decision to the full U.S. Court of Appeals for the 9th Circuit. An “en banc” appeal, as it is referred to in court, would allow Trump’s legal team to appeal to 11 judges who would re-hear the case and issue a new ruling.
But that could also prove difficult, because the San Francisco-based court is considered the most liberal in the country. Eighteen of the judges were appointed by Democratic presidents compared to just seven appointed by Republicans. The administration has 14 days to request that kind of appeal.
3. Go back to Washington state
Another option is to allow the appeals court ruling to stand and return to the federal judge in Seattle who initially blocked Trump’s plan a week ago. The ruling from the 9th Circuit only deals with the temporary restraining order issued by District Judge James Robart on Feb. 3. Temporary restraining orders are designed to be brief, generally lasting about 14 days. The next step would be a preliminary injunction, which can remain in place indefinitely.
A hearing for a preliminary injunction is already taking shape. Robart has given both sides until Feb. 17 to file their motions, and it’s expected he would schedule a hearing soon after that. His decision in that case likely would result in another round of appeals. After those are completed, then Robart could hold new hearings to decide the case on the merits – the final phase that would determine whether Trump’s executive order is legal. That decision also would face appeals and could end up before the Supreme Court.
4. Go write a new executive order
It may not be the president’s inclination, but the appeals court panel hinted that a scaled-back executive order that did not bar all citizens from the seven countries might have a better shot at clearing legal hurdles. The court noted that the White House counsel’s office already has proposed allowing travel by lawful permanent residents of the U.S.. It said such a change should come from the president. At the same time, the administration could eliminate references to protecting religious minorities, which appeared to single out majority Muslims for the ban.
source : msn.com