On Friday, District Judge James Robart issued a temporary restraining order — a short-term, preliminary order — preventing the government from enforcing the most controversial parts of President Trump’s refugee and visa ban.
The federal government asked the Ninth Circuit Court of Appeals to place a stay on Robart’s order while they appealed.
The Ninth Circuit rejected the federal government’s request.
Meanwhile, Robart still has to decide whether to issue a preliminary injunction — an indefinite hold — on the executive order. (The temporary restraining order is only supposed to last until Robart decides on the injunction.)
Robart has ordered both sides to submit briefs for the injunction by February 17. But he hasn’t scheduled a hearing on the injunction yet, and the Ninth Circuit, in its ruling Thursday, acknowledged he probably won’t get a chance to rule on the injunction for the next several weeks. That means the temporary order would be in place until then, if nothing else happens.
However, the Trump administration has options.
It could appeal Thursday’s ruling to a bigger panel of Ninth Circuit judges (11, rather than three). Given that the Ninth Circuit is notoriously liberal, it’s not clear why the administration would try its luck with that.
Or it could appeal to the Supreme Court to do what the Ninth Circuit panel wouldn’t, and stay Judge Robart’s order.
Justice Anthony Kennedy (who’s the justice in charge for the Ninth Circuit) would have to decide whether to take the case, or to ask all eight members of the Supreme Court to consider it. For such a big case, he’d probably do the latter.
That would happen in a matter of days or even hours.
To grant the stay, the Court would need to get five justices — meaning at least one liberal on the Court would have to join the conservatives in siding with the Trump administration.
And even if that happened, the stay would only be in place until Robart ruled on the preliminary injunction; it’s not clear whether the Court would want to bother to intervene in this case for such a temporary reason.
(Especially when there’s a mountain of other litigation against the executive order, and another federal judge could issue a separate restraining order or injunction against the ban at any given time.)
No matter which way Robart rules on the preliminary injunction, it will probably be appealed back up to the Ninth Circuit and then to the Supreme Court.
But an injunction, unlike the temporary restraining order in place now, doesn’t have to be resolved immediately — it isn’t an emergency order.
So it will likely take months for the preliminary injunction to make it back up to the Supreme Court…
…at which point, the Court will probably have seated nominee Neil Gorsuch.
Gorsuch could give the conservative wing of the court a 5-4 majority to side with the Trump administration. Or he — and maybe even other conservative justices — could decide to strike a blow for the judicial branch against the Trump administration’s expansive theory of executive power. We have a long, long way to go before we know.
Looks like this will be going back and forth for quite a while.