Lawyers for the federal government and the states of Washington and Minnesota will face off in court on Tuesday for what is likely to become the biggest test President Donald Trump has seen yet for his executive order restricting immigration and refugee resettlement from predominantly Muslim countries.
There are several similar challenges in federal courts across the country. But at least for now, all eyes will be on the San Francisco-based U.S. Court of Appeals for the 9th Circuit, which is scheduled to hear oral arguments and stream them live on its website starting at 6 p.m. Eastern time.
Why does this particular legal challenge matter above all the others? Below are some common questions and answers about it.
What exactly will the appeals court be deciding?
The case came to the 9th Circuit as an emergency motion by the Trump administration, which requested that the court put on hold a lower-court ruling that effectively blocked the executive order nationwide.
That ruling, by U.S. District Judge James Robart ― a George W. Bush appointee who Trump has since targeted with angry tweets ― did not pass judgment on the ultimate legality of the travel ban. Instead, it was styled as a temporary restraining order, and all the appeals court needs to decide at this stage is whether Robart correctly determined the legal standard for his decision.
This explains why the Department of Justice, in its weekend motion, used words such as “likelihood of success on the merits” and alluded to chances of “irreparable harm” to the government: Lawyers for the administration are arguing that Robart’s decision is injuring the executive branch ― and its authority over immigration policy ― every day that the travel ban isn’t in place.
It’s an argument that some legal observers are calling extreme, and it stands in contrast with the argument that the states of Washington and Minnesota are offering to maintain the freeze on the executive order: that its implementation causes irreparable harm to them, their residents and many of the programs the states manage.
Can the court declare the president’s travel ban unconstitutional?
Not at this stage. In fact, it is highly likely that the 9th Circuit will simply decide if Robart applied the correct standard for temporary restraining orders. In passing, the court may mention the larger constitutional questions surrounding the case ― the scope of presidential power over immigration, or whether the travel ban amounts to religious discrimination or a denial of equal protection of the laws.
But Robart’s ruling was narrow, relatively short, and only of temporary application — even though it essentially ties the federal government’s hands while the litigation is ongoing. On that score, the two sides have already proposed a briefing schedule so that Robart may decide if his ruling should be extended. So expect more court filings, more oral arguments, and possibly another televised showdown for that hearing later this month.
(There’s a slight possibility the 9th Circuit will punt altogether and tell DOJ that a temporary restraining order isn’t even appealable under court rules. Which means the states will win this early round and the 9th Circuit will get a later chance to review whatever Robart does next with the case.)
Why this case and not the others?
Several courts in different parts of the country have already blocked or ruled against aspects of Trump’s travel ban ― but only with respect to a small subset of immigrants and travelers stranded at airports or mid-travel.
Robart’s ruling, on the other hand, was more significant because it put the brakes on the executive order nationwide ― all thanks to a theory of legal harm that Republican-led states deployed effectively during the Obama years: that states as a whole suffer as a result of an ill-conceived or illegal federal policy.
Here, Washington and Minnesota successfully cited that theory of standing to sue the government while arguing they have the right to sue in court to stop the executive order. In fact, Robart mentioned the very case brought by Texas and 25 other states against Obama’s executive action on immigration for the proposition that immigration laws should be uniform across the country. And that if one state is potentially harmed by the policy, the policy must be put on hold for every state.
Expect the 9th Circuit to address this theory of standing at Tuesday’s oral arguments. In its legal briefs, the DOJ calls the states’ harms “speculative” and “hypothetical” ― an argument that, if accepted, might lead to the dismissal of the case.
Who else has weighed in on the case?
For a case at such an early stage in the process, briefs and filings from all corners have poured in before the 9th Circuit ― most of them supporting the states of Washington and Minnesota.
Perhaps the most significant of them was a declaration attached to a brief from the states that was signed by former national security and intelligence officials who have served under both Democratic and Republican administrations. Their document matters because many of them were intimately familiar with the threats the country faced from terrorist sources. The 9th Circuit could find persuasive their contention that Trump didn’t sign the executive order to protect national security, and thus there’s no urgency in lifting the hold on the travel ban right now.
Others who have weighed in on the controversy include tech companies; a coalition of states led by New York, Pennsylvania and Massachusetts; the American Civil Liberties Union; immigrants’ rights advocates, legal scholars, labor groups and other organizations with an interest in seeing Trump’s travel ban rescinded altogether.
Also noteworthy: HIAS, one of the world’s oldest refugee relief organizations, also filed a brief opposing the executive order. HIAS once helped a judge who now sits on the 9th Circuit resettle in the U.S. with his family after they fled communist Romania.
What judges have been assigned to the case?
The three federal judges preparing to hear the oral arguments represent a cross-section of the political spectrum.
They are U.S. Circuit Judge William Canby, an appointee of President Jimmy Carter based in Phoenix; U.S. Circuit Judge Richard Clifton, an appointee of President George W. Bush who is based in Hawaii; and U.S. Circuit Judge Michelle Friedland, an appointee of President Barack Obama who sits in San Jose, California.
Can the case to the Supreme Court? And would Trump’s nominee, Neil Gorsuch, get a chance to vote on it?
Sooner or later, the ultimate legality of Trump’s executive order on Muslim travel is sure to land before the Supreme Court ― with a full briefing schedule and a dramatic showdown in Washington. Every president wants to see his policies succeed, and Trump has already indicated that he might take the case to the nation’s highest court if needed.
“I mean, we’ll see. Hopefully it doesn’t have to,” the president said Tuesday, according to Politico. “It’s common sense. You know some things are law, and I’m all in favor of that. And some things are common sense. This is common sense.”
At this early stage ― in which lower courts haven’t yet reached the merits of Trump’s executive order ― it’s unlikely that the justices will choose to get involved. If there’s an appeal, they may issue a one-line order either reversing or refusing to disturb whatever the 9th Circuit decides after Tuesday’s hearing.
But it’s far more probable they’ll just wait it out until the lower courts develop a bigger record, when there will be more substantive arguments and rulings to review. That could come several months down the line ― which means Neil Gorsuch, the judge Trump nominated to the Supreme Court, may get a chance to weigh in on the case. Just not now.