President Trump’s controversial travel ban might be significantly weaker by the time his Supreme Court nominee has a chance to weigh in on it, legal experts said.
Trump nominated Neil Gorsuch to the Supreme Court just as a nationwide legal battle was unfolding over the president’s executive order barring all refugees and many Middle Eastern visitors from the U.S. And Senate Democrats have said the ongoing legal fight will raise new questions about Gorsuch’s independence—whether he would be willing to strike down a signature policy of the president who nominated him.
Gorsuch will all but certainly duck specific questions about the travel ban during his confirmation hearings, and the court will likely have to resolve the first phase of the litigation without him. But whether he would have to rule on the travel ban if he’s confirmed—and, if so, when—will depend in part on how aggressively the Justice Department decides to fight for the policy now.
There are no guarantees Gorsuch would vote to uphold the travel ban, legal experts said. His record on the 10th Circuit Court of Appeals has shown him to be a skeptic of executive power and a staunch supporter of religious freedom.
“I think it’s hard to predict how he would rule. He’s pretty strong on separation of powers,” Georgetown University law professor Susan Low Bloch said.
But if the White House does want Gorsuch to rule on its executive order, it will have to wait—and even then, experts said, there’s a good chance the administration would end up making substantial revisions to its policy or suffering significant legal setbacks in the meantime.
The next phase in the rapidly developing legal drama could begin as early as this week, when a panel of the 9th Circuit Court of Appeals decides whether the administration should be allowed to implement its executive order while the debate over its constitutional merits works its way through the legal system. Most legal experts expect the 9th Circuit—generally considered the most liberal circuit court in the country—to keep the policy on ice.
If that happens, the Justice Department’s most likely next step would be an appeal to the Supreme Court. What it seeks from the high court now could determine whether and when Gorsuch would need to weigh in.
Many legal observers expect the Justice Department to ask the Supreme Court to stay the 9th Circuit’s decision—effectively blocking the block on enforcement, and allowing officials to carry out the executive order while the fight over its merits continues. Five justices must agree to grant a stay, and Gorsuch almost certainly won’t be on the high court by the time it has to make that decision. If five justices voted to deny a stay, or if the shorthanded court split 4-4, the 9th Circuit’s decision would remain in effect. And because so many experts believe that decision will be a loss for the Justice Department, they say there’s a good chance Trump won’t be able to implement the policy while the courts sort out whether it’s constitutional.
It could take a year or more for the merits of the travel ban to percolate back up to the Supreme Court—plenty of time for Gorsuch to be confirmed and take his seat.
But the denial of a stay could cause lower courts to line up against the policy, said Josh Blackman, a conservative legal analyst and a professor at South Texas College of Law.
“If the court denies the stay, that signals to the lower courts the government is unlikely to prevail on the merits,” he said. “That’s basically the case. They lose.”
Seeking a stay from the Supreme Court might normally seem like the obvious next step. But in this case, Blackman said, it might be a strategic mistake. If the White House accepted that its executive order wouldn’t be implemented for now, it might be on stronger legal footing as the courts debate whether it’s constitutional, he said.
Trump, though, is not especially known for his patience, and has already launched a full-scale Twitter offensive at the “so-called judge” who first barred the administration from implementing its policy.
Many of the executive order’s most controversial provisions are temporary. It bars visitors from seven Middle Eastern, majority Muslim countries for 90 days, and halts all refugee resettlement for 120 days. (Its ban on Syrian immigration, though, is permanent.)
Because so much of the order was temporary, Blackman said, the White House could let those provisions expire without being allowed to enforce them, then retool it into a “tighter” policy with a more solid legal foundation—and that revised measure would be the one on its way toward the Supreme Court.
Losses in the courts could help accelerate such changes, Bloch said.
Legal experts are divided over the merits of the policy; some argue that it’s well within Trump’s authority to set limits on immigration and refugee resettlement, especially if he is doing so for national security purposes.
Bloch, though, said “I think it’s so clearly unconstitutional” that the White House will lose early cases on the merits and decide to come up with a new policy well before the beginning of the next Supreme Court term, when Gorsuch would be hearing cases.
“I don’t see the Trump administration continuing to litigate this particular ban all the way to the end,” Bloch said.