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blog: jamie-dupree

What's next in the fight over the Trump immigration order

Published: Friday, February 10, 2017 @ 2:38 AM

With a three judge federal appeals court panel dealing a stinging rebuke to President Donald Trump over his controversial immigration order, the plan to restrict refugee admissions and block arrivals from seven specific Muslim-majority nations remains on hold, as the President vowed that he would fight a unanimous decision against him from the Ninth Circuit Court of Appeals.

"We'll be doing something very rapidly having to do with additional security for our country," the President told reporters during a joint news conference on Friday afternoon with the Prime Minister of Japan.

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Mr. Trump hinted at some type of executive actions next week, amid reports that he might just issue a brand new Executive Order. But he also vowed to continue the fight in court.

"I have no doubt that we'll win that particular case," the President said.

Take a minute to read the full decision of the three judge panel, which refused to lift a Temporary Restraining Order again the Trump plan.

Here is where we stand in the fight over Mr. Trump's plan:

1. The Trump Administration has a series of legal options. There are five basic choices for the White House and Justice Department at this point. They could appeal the ruling to the full Ninth Circuit (unlikely), take an appeal to the U.S. Supreme Court (more likely), or even go back to the original district court for a broader argument on the merits of the case (probably not). Or, the White House could simply revise the Executive Order and re-issue it, and maybe change some procedures on immigrant vetting. Some even want the President to just wait until Judge Neil Gorsuch is confirmed by the Senate, in hopes that he would provide the tie-breaking vote at the Supreme Court. We'll see what the President does.

2. Remember, this is not on the merits of the case. The decision of the three judge panel was to leave in place the decision of a federal district judge to not allow the Trump plan to go into effect. While some of the direct issues were discussed in the ruling, we are not at the point where that is the main point of argument. This is so much like the legal battle over President Obama's immigration order, which was put on hold in February of 2015 by a single federal judge in Texas, and then the President lost his fight to have that stay lifted. In fact, the Ninth Circuit used the ruling of the Fifth Circuit in that matter to make the point that this decision effects the entire nation, not just one circuit.

3. Republicans in Congress say little about the decision. One thing that caught my eye on Thursday was how few statements were issued by GOP lawmakers in the House and Senate about the Ninth Circuit ruling that went against President Trump. As of Friday morning, there were only a handful Republicans who made any statement. "No foreigner has a constitutional right to enter the United States and courts ought not second-guess sensitive national-security decisions of the president," said Sen. Tom Cotton (R-AR). "I am optimistic that the Supreme Court will review this ruling and put the Constitution and American people ahead of politics," said Rep. Jim Renacci (R-OH). And there was one issued by Rep. Kevin Yoder (R-KS). But that was it. Almost radio silence from GOP lawmakers on a huge story. Maybe it reflected some of the frustration with how the plan was rolled out by the White House.

4. Ninth Circuit not impressed with Trump work product. One of the hiccups that happened with the Trump immigration order was the question of whether it applied to Green Card holders, known as Legal Permanent Residents of the United States. At first it did, and that a lot of blowback and complaints - and then the White House backed off. But did they really officially do that? President Trump never re-issued the Executive Order; all that was sent out was a qualifying statement by the White House Counsel. But the three judges on the Ninth Circuit said that was not enough, bluntly saying that the "White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments." That could have been dealt with easily if the White House had President Trump sign that change.

5. Could the Trump Administration win at the Supreme Court? Of course - Remember, it is the Ninth Circuit, which has a terrible record when it comes to cases being overturned by the U.S. Supreme Court - so yes, that could happen. The problem though is the same one that bedeviled the Obama Administration on immigration in 2016, and that is the lack of a ninth justice. A 4-4 split by the Justices on the Trump immigration order stay would leave in place the Ninth Circuit decision, and it may be months before a new justice is on the Supreme Court bench. So, for now, going to the nation's highest court it may not be the best option for President Trump.

Stay tuned.


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