This article originally appeared in the Daily Journal on September 25, 2017.
The travel ban litigation can make your head spin. Nearly every week for the last six months courts have issued decisions dealing with some portion of President Trump’s executive order on immigration. While the lower courts have uniformly blocked the ban, the Supreme Court has reversed at least some portion of those decisions three times — and it hasn’t even gotten to the heart of the dispute yet.
To recap the highlights, when President Trump first issued an executive order in January 2017 barring entry to the United States from seven predominantly Muslim countries, airports across the globe were thrown into disarray. Several district courts issued orders enjoining enforcement of the travel ban, and the 9th Circuit upheld the injunction. Trump tweeted “SEE YOU IN COURT” to the 9th Circuit, but then withdrew the order rather than seek Supreme Court review. Instead, Trump issued what he described as a “watered-down” version that applied to six countries, contained some token attempts at justification, and took out religious preferences that benefitted Christians. District courts again issued a blanket injunction against the new ban, and two courts of appeals affirmed those injunctions — the 4th Circuit held the ban violated the establishment clause by intentionally discriminating against Muslims, and the 9th Circuit held the ban exceeded the immigration powers statutorily delegated to the president by Congress.
The fast-paced litigation provides some take-aways about Supreme Court practice. First, the Supreme Court has absolutely no problem rejecting the opinions of lower courts, even when all those courts agreed. Before the case first got to the Supreme Court the litigation had been a string of wins for the challengers. The president had won virtually nothing. But the government then petitioned the Supreme Court, and in a June 26 per curiam order the court granted certiorari and lifted the injunction as to travelers without a “bona fide” connection to the United States. This means some portions of the ban can be enforced until the Supreme Court decides the merits.
Second, even though it’s the final authority, Supreme Court decisions can raise more questions than they answer. The Supreme Court’s June 26 order allowed the ban to go into effect as to those travelers without a “bona fide” connection to the United States. The order held that the relationships of the petitioners in the litigation — including a mother-in-law of a U.S. citizen — qualified under that new test, but otherwise left the standard undefined. The Trump administration promptly announced that grandparents, grandparents, grandchildren, nieces, nephews, aunts and uncles of U.S. citizens don’t have a close enough relationship to qualify. The administration’s new guidance also banned the entry of refugees with a formal invitation and sponsorship from a U.S. refugee organization. As you could likely guess, the challengers took a different view of what constitutes a bona fide relationship, and went back to the district courts again, resulting in two more quick trips to the Supreme Court.
Third, know when to hold ‘em and when to fold ‘em. In the latest 9th Circuit hearing, the judges were, to put it politely, skeptical of the Trump administration’s position that grandparents and similar family members don’t qualify under the Supreme Court’s test. “Like what universe does that come from?” asked one of the judges at oral argument. The government decided to cut its losses and only seek further review of the 9th Circuit’s injunction as to refugees — potentially sensing that the 50 to 80 year-olds sitting on the Supreme Court weren’t the best demographic for their argument that grandparents should be excluded. That pivot allowed the Trump administration to claim a complete victory from the Supreme Court in the most recent orders. The Supreme Court issued an injunction allowing the refugee ban to go into effect “pending further order of this Court,” effectively preventing the lower courts from further attempts to enjoin that portion of the ban until after the Supreme Court decision this fall or spring.
Fourth, focus on the war rather than just the battle — unless PR is a big concern. The last few Supreme Court orders were mostly victories for the Trump administration, and they got to trumpet those wins in the press, but those skirmishes were relatively minor disputes over the status of the ban for the next few months. The heart of the case is whether the travel ban itself is lawful, and that will be heard by the Supreme Court October 10. To prevail the administration must show that the order is statutorily authorized, and that it doesn’t violate the constitution, and that the issue is not moot. Each of those issues is complex and difficult — so it should come as no surprise if the administration attempts to find a way around Supreme Court review of the ban, potentially by withdrawing the current ban and issuing a slightly different one.
But perhaps it won’t. A careful analysis of the likelihood of success on the merits would drive most rational litigants to find a way to avoid Supreme Court review, and in this case the President may be able to moot the issue, but the administration’s strategy here may turn on political calculus. (The folks in the office of the Solicitor General are brilliant litigators, but they don’t have final say over this decision). Add to this the fact that Justices Alito, Thomas, and Gorsuch have already joined orders suggesting they believe the ban is fine, which probably emboldens the administration even more.
Finally, even appellate litigation can be unpredictable and messy. The challengers to the travel ban obviously knew they were signing up for intense, high-profile litigation, but three trips to the Supreme Court within three months, and a fourth appearance scheduled for next month, is a lot even for a high stakes case. As Neal Katyal, counsel for the challengers, summed things up in a tweet, “It went up and down to the Supreme Court, trial court, and Ct of Appeals many times. Many emergency briefs. Many late nights.”
Anna-Rose Mathieson is a partner with California Appellate Law Group LLP*, the largest appellate boutique in Northern California. You can find them at www.calapplaw.com. Appellate Zealots is a monthly column on recent appellate decisions written by the attorneys of the California Appellate Law Group.
*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.
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