Supreme Court Justice nominee Neil Gorsuch, left, meets with Senate Judiciary Committee Sen. Chuck Grassley, R-Iowa, on Feb. 1.

Supreme Court Justice nominee Neil Gorsuch, left, meets with Senate Judiciary Committee Sen. Chuck Grassley, R-Iowa, on Feb. 1. Jose Luis Magana/AP

Featured eBooks
Disaster Recovery and Resilience
Cloud Smarter
The Cybersecurity Challenge
Will Gorsuch Have to Rule on Trump’s Travel Ban?

Trump’s executive order on immigration is headed for the Supreme Court.

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.